Preface: This paper culminates my line of argument since our University of Hawaii Pakistan book in the mid 1980s, through my work on the Kashmir problem in the 1990s, published in The Statesman in 2005/2006 etc and in my undelivered Lahore lectures of 2011. https://independentindian.com/2011/10/13/my-seventy-one-notes-at-facebook-etc-on-kashmir-pakistan-and-of-course-india-listed-thanks-to-jd/ The paper has faced resistance from both Indian and Pakistani newspapers for obvious reasons. I would like to especially thank Beena Sarwar and Gita Sahgal in recent weeks for helpful comments. (And Frank Hahn, immediately saw when I mentioned it to him in 2004 that my solution was Pareto-improving…etc)

The *Bulletin of Atomic Scientists* recently reported an Urdu book *Taqat ka Sarab* (‘*Illusion of Power*) published in Pakistan in December 2014 edited by the physicist Dr AH Nayyar. The book “aims to educate Pakistanis about the attitudes of their leadership toward nuclear weapons”. It says “Pakistan’s people have come to believe that the successful acquisition of nuclear capability means that their nation’s security is forever ensured”. Pakistani politicians, scientists and officials who created these weapons have used them to justify a “right to unlimited authority for ruling over Pakistan”. “Consequently, free discussion and honest opinion about nuclear weapons have been nearly prohibited, under the premise that any such talk poses a basic threat to national security.”

Prime Minister Lal Bahadur Shastri’s order to Indian forces to cross the Punjab border towards Lahore in 1965 in response to President Ayub Khan’s attack in Kashmir genuinely shocked Pakistan’s political and military establishment at the time. It may have continued to do so ever since. Everyone in Lahore for those few days in September 1965 was ready to battle the invasion of infidel India considered imminent when Indian forces reached the Ichogil canal.

“Hindu-dominated India wants to occupy us and destroy the Pakistan Principle for which our martyrs died” has been the constantly heard Pakistani refrain. After 1965 it did not take long for Pakistan, via the ignominy of the 1971 surrender in Dhaka, to acquire by any means the technology to develop its own nuclear weapons, even under the noses of its American friends.

Now Pakistan is said to have some 110 nuclear warheads, mostly in a disassembled state but with a few on fighter-jets in hidden air-bases in Balochistan (made by the USA decades ago) always at the ready, waiting for that Indian attack that will never come. It may all have been psychotic delusion.

India has never initiated hostilities against Pakistan. Not once. Not in 1947, 1965, 1971, 1999, 2008.

In 1971 India undoubtedly supported the Mukti Bahini, and I myself, as a schoolboy distributing supplies to refugees from East Pakistan/Bangladesh, was personally witness to Indian military involvement as of August 1971. Even so, hostilities between the countries formally began on 3 December 1971 with the surprise Pakistani air attack on Indian bases in Punjab and UP.

Though India has never attacked first, the myth continues in Pakistan that wicked Hindu-dominated India wants to attack and suppress their country. What is closer to the truth is that the New Delhi elite is barely able to run New Delhi, and the last place on earth they would want to run is Pakistan.

On our Indian side, the Indian military has been allowed a budgetary carte blanche for decades, especially with foreign exchange resources. (Finance Minister Arun Jaitley on 28 February 2015 has allocated some 2,467 billion INR to the military.)

Despite our vast spending, a band of Lashkar-e-Tayyaba terrorists tyrannized Mumbai for days on end while we seem perpetually without strategy against the People’s Republic of China’s recurrent provocations.

The two world powers with traditional interests in India — Russia and Britain — place their long-term agents in Delhi’s high politics and places with impunity, getting done all they need to in particular cases. The USA, France, Israel and others follow suit – all mainly to do with selling India very expensive military weapons, aircraft etc. that they have in excess inventory. India now has the notorious distinction of being the world’s largest weapons’ importer.

Yet we are hardly a trading or monetary superpower. We have large current account and budgetary deficits, and we are essentially buying whatever weapons, aircraft, shopping malls etc. that we do on foreign credit that we may or may not have. (Pakistan does the same.)

India’s illusions of power have to do with boasting a very large military that can take on the imperialists. We do not realize the New Imperialism that may control Delhi is not of a Clive or Dupleix but of clandestine or open foreign lobbyists and agents who get done what their masters need to have done on a case-by-case basis. The result is a corrosion of Indian power, sovereignty, and credit, little by little, and may lead to a collapse or grave crisis in the future. Even the BJP/RSS Government of Mr Modi (let aside the Sonia-Manmohan Congress and official Communists) may not realize how it all came about.

The way forward for both Pakistan and India is to seek to break the impasse between ourselves.

And there is no doubt the root problem remains Kashmir, and the hysteria and terrorism it has spawned over the years. A resolution of these fundamental issues calls for some hard scholarship, political vision and guts. The vapid gassing of stray bureaucrats, journalists, diplomats or generals has gotten everyone precisely nowhere thus far.

I have argued at length in previous publications that the *de facto* boundary that was the Ceasefire Line in 1949, and was later renamed the Line of Control in 1972, is indeed also the *de jure* boundary between India and Pakistan.

Jammu & Kashmir came into existence as a legal entity on 16 March 1846 under the Dogra Gulab Singh, friend of the British during the Sikh wars, and a protégé earlier of the great Sikh Ranjit Singh.

Dogra J&K ended its existence as an entity recognized in international law on 15 August 1947. (Hari Singh, the fourth and last Dogra ruler where Gulab Singh had been the first, desperately sought Clement Attlee’s recognition but did not get it.) Thanks to British legal confusion, negligence or cunning, the territory of what had been known as Dogra Jammu & Kashmir became sovereign-less or ownerless territory in international law on that date, with the creation of the new Pakistan and new India.

The new Pakistan as of August-September 1947 immediately started to plan to take the territory by force, and sought to implement that plan as of 22 October. Had the Pakistani attackers not stopped to indulge in the Rape of Baramullah, they would have taken Srinagar airport by 26 October, and there would have been no Indian defence of the territory possible. As matters turned out, the ownerless territory of what had been Dogra Jammu & Kashmir came to be divided by “military decision” (to use the UN’s term) between the new Pakistan and new India. Kargil and Drass were taken by Pakistan and then lost. Skardu was held by India and later lost. Neither military ever since is going to permit the other to take an inch from itself either by war or by diplomacy.

The *de facto* boundary over ownerless territory divided by military force is the *de jure* boundary in the Roman law that underlies all international law. Once both sides recognize that properly, we may proceed to the next stages.

On the Pakistani side, recognizing Indian sovereignty over Indian territory in what had been J&K requires stamping out the LeT etc – perhaps not so much by force as by explaining to them that the fight is over, permanently. There is no jihad against India now or ever. Indian territory is not dar-ul-harb but dar-ul-aman: where more than one hundred million Muslim citizens of India freely and peacefully practice their faith.

On the Indian side, if, say, SAS Geelani and friends, under conditions of individual privacy, security and full information, wish to renounce Indian nationality, become stateless, and apply for some other nationality (like Pakistani or Afghan or Iranian) while continuing to live lawfully and law-abidingly on Indian territory, do we have a problem with that? We can’t really. The expatriate children of the Indian elite have renounced Indian nationality in America, Britain, Australia etc upon far weaker principles or beliefs. India has many foreign nationals living permanently on its territory peacefully and law-abidingly (Sir Mark Tully perhaps the most notable) and can add a few more.

The road would be gradually opened for an exchange of consulates between India and Pakistan in Srinagar and Muzaffarabad (leave aside vice-consulates or tourist offices in Jammu, Gilgit, Skardu, Leh). And the remaining Hurriyat, as new Pakistani nationals living in India, can visit the Pakistani consul in Srinagar for tea every day if they wish, to discuss Pakistani matters like Afridi’s cricket or Bilawal’s politics or whatever.

The militaries and potentially powerful economies on both sides could then proceed towards real strength and cooperation, having dispelled their current illusions of power.

On Pakistan and the Theory & Practice of the Islamic State: An Excerpt from the Munir Report of 1954

From REPORT of THE COURT OF INQUIRY constituted under PUNJAB ACT II OF 1954 to enquire into the PUNJAB DISTURBANCES OF 1953 “Munir Report”

“ISLAMIC STATE
It has been repeatedly said before us that implicit in the demand for Pakistan was the demand for an Islamic State. Some speeches of important leaders who were striving for Pakistan undoubtedly lend themselves to this construction. These leaders while referring to an Islamic State or to a State governed by Islamic laws perhaps had in their minds the pattern of a legal structure based on or mixed up with Islamic dogma, personal law, ethics and institutions. No one who has given serious thought to the introduction of a religious State in Pakistan has failed to notice the tremendous difficulties with which any such scheme must be confronted. Even Dr. Muhammad Iqbal, who must be considered to be the first thinker who conceived of the possibility of a consolidated North Western Indian Muslim State, in the course of his presidential address to the Muslim League in 1930 said:

“Nor should the Hindus fear that the creation of autonomous Muslim States will mean the introduction of a kind of religious rule in such States. The principle that each group is entitled to free development on its own lines is not inspired by any feeling of narrow communalism”.

When we come to deal with the question of responsibility we shall have the occasion to point out that the most important of the parties who are now clamouring for the enforcement of the three demands on religious grounds were all against the idea of an Islamic State. Even Maulana Abul Ala Maudoodi of Jama’at-i-Islami was of the view that the form of Government in the new Muslim State, if it ever came into existence, could only be secular.

Before the Partition, the first public picture of Pakistan that the Quaid-i-Azam gave to the world was in the course of an interview in New Delhi with Mr. Doon Campbell, Reuter’s Correspondent. The Quaid-i-Azam said that the new State would be a modern democratic State, with sovereignty resting in the people and the members of the new nation having equal rights of citizenship regardless of their religion, caste or creed. When Pakistan formally appeared on the map, the Quaid-i-Azam in his memorable speech of 11th August 1947 to the Constituent Assembly of Pakistan, while stating the principle on which the new State was to be founded, said:—

“All the same, in this division it was impossible to avoid the question of minorities being in one Dominion or the other. Now that was unavoidable. There is no other solution. Now what shall we do? Now, if we want to make this great State of Pakistan happy and prosperous we should wholly and solely concentrate on the well-being of the people, and specially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet, you are bound to succeed. If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges and obligations., there will be no end to the progress you will make. “I cannot emphasise it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communities—the Hindu community and the Muslim community— because even as regards Muslims you have Pathana, Punjabis, Shias, Sunnis and so on and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalis, Madrasis and so on—will vanish. Indeed if you ask me this has been the biggest hindrance in the way of India to attain its freedom and independence and but for this we would have been free peoples long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time but for this (Applause). Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion or caste or creed— that has nothing to do with the business of the State (Hear, hear). As you know, history shows that in England conditions sometime ago were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God we are not starting in those days. We are starting in the days when there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State (Loud applause). The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the Government of their country and they went through that fire step by step. Today you might say with justice that Roman Catholics and Protestants do not exist: what exists now is that every man is a citizen, an equal citizen, of Great Britain and they are all members of the nation. “Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State”.

The Quaid-i-Azam was the founder of Pakistan and the occasion on which he thus spoke was the first landmark in the history of Pakistan. The speech was intended both for his own people including non-Muslims and the world, and its object was to define as clearly as possible the ideal to the attainment of which the new State was to devote all its energies. There are repeated references in this speech to the bitterness of the past and an appeal to forget and change the past and to bury the hatchet. The future subject of the State is to be a citizen with equal rights, privileges and obligations, irrespective of colour, caste, creed or community. The word ‘nation’ is used more than once and religion is stated to have nothing to do with the business of the State and to be merely a matter of personal faith for the individual.

We asked the ulama whether this conception of a State was acceptable to them and everyone of them replied in an unhesitating negative, including the Ahrar and erstwhile Congressites with whom before the Partition this conception was almost a part of their faith.

If Maulana Amin Ahsan Islahi’s evidence correctly represents the view of Jama’at-i-Islami, a State based on this idea is the creature of the devil, and he is confirmed in this by several writings of his chief, Maulana Abul Ala Maudoodi, the founder of the jama’at. None of the ulama can tolerate a State which is based on nationalism and all that it implies; with them millat and all that it connotes can alone be the determining factor in State activity.

The Quaid-i-Azam’s conception of a modern national State, it is alleged, became obsolete with the passing of the Objectives Resolution on 12th March 1949; but it has been freely admitted that this Resolution, though grandiloquent in words, phrases and clauses, is nothing but a hoax and that not only does it not contain even a semblance of the embryo of an Islamic State but its provisions, particularly those relating to fundamental rights, are directly opposed to the principles of an Islamic State.

FOUNDATIONS OF ISLAMIC STATE

What is then the Islamic State of which everybody talks but nobody thinks? Before we seek to discover an answer to this question, we must have a clear conception of the scope and function of the State.

The ulama were divided in their opinions when they were asked to cite some precedent of an Islamic State in Muslim history. Thus, though Hafiz Kifayat Husain, the Shia divine, held out as his ideal the form of Government during the Holy Prophet’s time, Maulana Daud Ghaznavi also included in his precedent the days of the Islamic Republic, of Umar bin Abdul Aziz, Salah-ud-Din Ayyubi of Damascus, Sultan Mahmud of Ghazni, Muhammad Tughlaq and Aurangzeb and the present regime in Saudi Arabia. Most of them, however, relied on the form of Government during the Islamic Republic from 632 to 661 A. D., a period of less than thirty years, though some of them also added the very short period of Umar bin Abdul Aziz.

Maulana Abdul Haamid Badayuni stated that the details of the ideal State would be worked out by the ulama while Master Taj-ud-Din Ansari’s confused notion of an Islamic State may be gathered from the following portion of his interrogation :—

“Q.—Were you also in the Khilafat movement ? A.—Yes. Q.—When did the Khilafat movement stop in India ? A.—In 1923. This was after the Turks had declared their country to be a secular State. Q.—If you are told that the Khilafat movement continued long after the Turks had abolished Khilafat, will that be correct? A.—As far as I remember, the Khilafat movement finished with the abolition of the Khilafat by the Turks. Q.—You are reported to have been a member of the Khilafat movement and having made speeches. Is it correct ? A.—It could not be correct. Q.—Was the Congress interested in Khilafat ?
A.— Yes.Q.—Was Khilafat with you a matter of religious conviction or just a political movement ? A.— It was purely a religious movement. Q.— Did the Khilafat movement have the support of Mr Gandhi ? A.—Yes. Q.— What was the object of the Khilafat movement ? A.— The Britisher was injuring the Khilafat institution in Turkey and the Musalman was aggrieved by this attitude of the Britisher. Q.— Was not the object of the movement to resuscitate the Khilafat among the Musalmans ?A.—No. Q.— Is Khilafat with you a necessary part of Muslim form of Government ? A.—Yes. Q.— Are you, therefore, in favour of having a Khilafat in Pakistan ? A.—Yes. Q.— Can there be more than one Khalifa of the Muslims ? A.— No. Q.— Will the Khalifa of Pakistan be the Khalifa of all the Muslims of the world ?
A.— He should be but cannot be.”

Throughout the three thousand years over which political thought extends, and such thought in its early stages cannot be separated from religion, two questions have invariably presented themselves for consideration : —

(1) what are the precise functions of the State ? and
(2) who shall control the State ?

If the true scope of the activities of the State is the welfare, temporal or spiritual or both of the individual, then the first question directly gives rise to the bigger question:

What is the object of human life and the ultimate destiny of man? On this, widely divergent views have prevailed, not at different times but at one and the same time. The pygmies of equatorial West Africa still believe that their God Komba has sent them into the forest to hunt and dance and sing. The Epicureans meant very much the same when they said that the object of human life is to drink and eat and be merry, for death denies such pleasures. The utilitarians base their institutions on the assumption that the object of human life is to experience pleasant sensations of mind and body, irrespective of what is to come hereafter. The Stoics believed in curbing and reducing all physical desires, and Diogenes found a tub good enough to live in. German philosophers think that the individual lives for the State and that therefore the object of life is service of the State in all that it might decide to undertake and achieve. Ancient Hindu philosophers believed in the logic of the fist with its natural consequence, the law of natural selection and the struggle for survival. The Semitic theory of State, whether Jewish, Christian or Islamic, has always held that the object of human life is to prepare ourselves for the next life and that, therefore, prayer and good works are the only object of life. Greek philosophers beginning with Socrates thought that the object of human life was to engage in philosophical meditation with a view to discovering the great truths that lie in nature and that the business of the others is to feed the philosophers engaged in that undertaking.

Islam emphasises the doctrine that life in this world is not the only life given to man but that eternal life begins after the present existence comes to an end, and that the status of a human being in the next world will depend upon his beliefs and actions in this world. As the present life is not an end in itself but merely a means to an end, not only the individual but also the State, as opposed to the secular theory which bases all political and economic institutions on a disregard of their consequences on the next life, should strive for human conduct which ensures for a person better status in the next world.

According to this theory Islam is the religion which seeks to attain that object. Therefore the question immediately arises : What is Islam and who is a momin or a Muslim ? We put this question to the ulama and we shall presently refer to their answers to this question. But we cannot refrain from saying here that it was a matter of infinite regret to us that the ulama whose first duty should be to have settled views on this subject, were hopelessly disagreed among themselves.

Apart from how these learned divines have expressed themselves, we conceive of Islam as a system that covers, as every systematic religion must, the following five topics :—
(1) the dogma, namely, the essentials of belief ;
(2) the cult, namely, religious rites and observances which a person must
perform ;
(3) ethics, i. e. rules of moral conduct ;
(4) institutions, social, economic and political ; and
(5) law proper.

The essential basis of the rules on all these subjects is revelation and not reason, though both may coincide. This coincidence, however, is accidental because human reasoning may be faulty and ultimate reason is known only to God, Who sends His message to humanity through His chosen messengers for the direction and guidance of the people. One must, therefore, accept the dogma, observe the cult, follow the ethics, obey the law and establish institutions which God has revealed, though their reason may not be apparent—nay even if they be opposed to human reason. Since an error by God is an impossibility, anything that God has revealed, whether its subject be something occult or preternatural, history, finance, law, worship or something which according to human thought admits of scientific treatment as for instance, birth of man, evolution, cosmology, or astronomy, has got to be accepted as absolute truth. The test of reason is not the acid test and a denial of this amounts to a denial of the supreme wisdom and designs of Allah—it is kufr. Now God has revealed Himself from time to time to His favoured people of whom our Holy Prophet was the last. That revelation is contained in the Qur’an and covers the five topics mentioned above. The true business of a person who believes in Islam is therefore to understand, believe in and act upon that revelation. The people whom God chooses as medium for the transmission of His messages are rasuls (messengers) or nabis (prophets). Since every action or saying of a prophet is, in the case of our own Holy Prophet it certainly was, prompted by Allah, it has the same degree of inerrancy as the formal revelation itself, because prophets are ma’sum, incapable of doing or saying something which is opposed to Divine wishes. These sayings and actions are sunna having the same infallibility as the Qur’an. The record of this sunna is hadith which is to be found in several books which were compiled by Muslim scholars after long, laborious and careful research extending over several generations.

The word hadith means a record of actions or sayings of the Prophet and his companions. At first the sahaba. i. e. people who had lived in the society of the Prophet, were the best authority for a knowledge of the sunna. Later people had to be content with the communications of the tabi’un, i. e. successors, people of the first generation after the Holy Prophet who had received their information from the sahaba, and then in the following generations with the accounts of the so-called successors of the successors (tabi’ul-tabi’un), i.e. people of the second generation after the Holy Prophet, who had concerted with the successors. Marfu’ is a tradition which contains a statement about the Prophet ; mawquf, a tradition that refers only to the sayings or doings of the sahaba ; and maqtu’ a tradition which does not at most go further back than the first generation after the Holy Prophet and deals only with sayings or doings of tabi’un. In some of the ahadith the actual word of God is to be found. Any such tradition is designated Hadith-i-Qudsi or Ilahi as distinguished from an ordinary Hadith-i-Nabvi.

A very large portion of sayings ascribed to the Prophet deals with the ahkam (legal professions), religious obligations, halal and haram (what is allowed and forbidden), with ritual purity, laws regarding food and criminal and civil law. Further they deal with dogma, retribution at the Last Judgment, hell and paradise, angels, creation, revelations, the earlier prophets. Many traditions also contain edifying sayings and moral teachings by the Holy Prophet. The importance of ahadith was realised from the very beginning and they were not only committed to memory but in some cases were reduced to writing. The work of compilation of hadith began in the third century after the Hijra and the Sihah Sitta were all compiled in that century. These are the musannifs of —
(1) Al-Bukhari, died 256/870,
(2) Muslim, died 261/875,
(3) Abu Dawud, died 275/888,
(4) Al-Tirmizi, died 279/892,
(5) All Nasa’i, died 303/915, and
(6) Ibn-i-Maja, died 273/886.

According to modern laws of evidence, including our own, the ahadith are inadmissible evidence of sunna because each of them contains several links of hearsay, but as authority on law they are admissible pro prio vigore. The merit of these collections lies not so much in the fact that (as is often wrongly stated) their authors decided for the first time which of the numerous traditions in circulation were genuine and which false but rather in the fact that they brought together everything that was recognised as genuine in orthodox circles in those days.

The Shias judge hadith from their own stand-point and only consider such traditions reliable as are based on the authority of Ali and his adherents. They have, therefore, their own works on the subject and hold the following five works in particularly high esteem—
(1) Al-Kafi of Muhammad b. Yaqub Al-Kulini, died 328/939,
(2) Man La Yastahdiruhu’ul-Fakih of Muhammad b. Ali b. Babuya Al-Kummi,
died 381/991,
(3) Tahdib Al-Ahkam,
(4) Al-Istibsar Fi-Ma’khtalafa Fihi’l-Akhbar (extract from the preceding) of
Muhammad Altusi, died 459/1067, and
(5) Nahj Al-Balagha (alleged sayings of Ali) of Ali b. Tahir Al-Sharif Al-Murtaza, died 436/1044 (or of his brother Radi Al-Din Al-Baghdadi.)

After the ritual, the dogma and the most important political and social institutions had taken definite shape in the second and third centuries, there arose a certain communis opinio regarding the reliability of most transmitters of tradition and the value of their statement. The main principles of doctrine had already been established in the writings of Malik b. Anas, Al-Shafi’i and other scholars regarded as authoritative in different circles and mainly on the authority of traditional sayings of the Holy Prophet. In the long run no one dared to doubt the truth of these traditions and this almost conclusive presumption of truth has since continued to be attached to the ahadith compiled in the Sihah Sitta.

We have so far arrived at this result that any rule on any subject that may be derived from the Qur’an or the sunna of the Holy Prophet is binding on every Musalman. But since the only evidence of sunna is the hadith, the words sunna and hadith have become mixed up with, and indistinguishable from, each other with the result that the expression Qur’an and hadith is not infrequently employed where the intention is to refer to Qur’an and sunna.

At this stage another principle, equally basic, comes into operation, and that is that Islam is the final religion revealed by God, complete and exhaustive in all respects, and that God will not abrogate, detract from or add to this religion (din) any more than He will send a fresh messenger. The din having been perfected (Akmalto lakum dinokum, Sura V, verse 3), there remains no need for any new code repealing, modifying or amplifying the original code; nor for any fresh messenger or message. In this sense, therefore, prophethood ceased with the Holy Prophet and revelation stopped for ever. This is the doctrine of the cessation of wahi-i-nubuwwat.

If the proposition that Muslim dogma, ethics and institutions, etc., are all based on the doctrine of inerrancy, whether such inerrancy lies in the Qur’an, the sunna, ijma’ or ijtihad-i-mutlaq, is fully comprehended, the various deductions that follow from it will be easily understandable. As the ultimate test of truth, whether the matter be one of a ritual or political or social or economic nature, is revelation and revelation has to be gathered from the Qur’an, and the sunna carries almost the same degree of inerrancy as revelation and the only evidence of sunna is hadith, the first duty of those who desire to establish an Islamic State will be to discover the precise rule applicable to the existing circumstances whether that rule is to be found in the Qur’an or hadith. Obviously the persons most suited for the purpose would be those who have made the Qur’an and hadith their lifelong study, namely, among the Sunnies, the ulama, and among the Shias, the mujtahids who are the spokesmen of the hidden Imam, the ruler de jure divino. The function of these divines would be to engage themselves in discovering rules applicable to particular situations and they will be engaged in a task similar to that in which Greek philosophers were engaged, with only this difference that whereas the latter thought that all truth lay in nature which had merely to be discovered by individual effort, the ulama and the mujtahids will have to get at the truth that lies in the holy Book and the books of hadith.

The ulama Board which was recommended by the Basic Principles Committee was a logical recognition of this principle, and the true objection against that Board should indeed have been that the Board was too inadequate a mechanism to implement the principle which had brought that body into existence.

Ijma’ means concurrence of the mujtahids of the people, i.e., of those who have a right, in virtue of knowledge, to form a judgment of their own, after the death of the Holy Prophet. The authority of ijma’ rests on the principle of a divine protection against error and is founded on a basal tradition of the Holy Prophet, “My people will never agree in error”, reported in Ibn Maja, By this procedure points which had been in dispute were fixed, and when fixed, they became an essential part of the faith and disbelief in them an act of unbelief (kufr). The essential point to remember about ijma’ is that it represents the agreement of the mujtahids and that the agreement of the masses is especially excluded.

Thus ijma’ has not only fixed unsettled points but has changed settled doctrines of the greatest importance.

The distinction between ijma’ and ijtihad is that whereas the former is collective, the latter is individual. Ijtihad means the exerting of one’s self to the utmost degree to form an opinion in a case or as to a rule of law. This is done by applying analogy to the Qur’an and the sunna. Ijtihad did not originally involve inerrancy, its result being always zann or fallible opinion. Only combined ijtihad led to ijma, and was inerrant. But this broad ijtihad soon passed into special ijtihad of those who had a peculiar right to form judgments. When later doctors looked back to the founding of the four legal schools, they assigned to their founders an ijtihad of the first rank (ijtihad-i-mutlaq). But from time to time individuals appeared who returned to the earliest meaning of ijtihad and claimed for themselves the right to form their own opinion from first principles. One of these was the Hanbalite Ibn Taimiya (died 728). Another was Suyuti (died 911) in whom the claim to ijtihad unites with one to be the mujaddid or renewer of religion in his century. At every time there must exist at least one mujtahid, was his contention, just as in every century there must come a mujaddid.

In Shia Islam there are still absolute mujtahids because they are regarded as the spokesmen of the hidden Imam. Thus collective ijtihad leads to ijma’, and the basis of ijma’ is divine protection against error—inerrancy.

ESSENTIALS OF ISLAMIC STATE
Since the basis of Islamic law is the principle of inerrancy of revelation and of the Holy Prophet, the law to be found in the Qur’an and the sunna is above all man-made laws, and in case of conflict between the two, the latter, irrespective of its nature, must yield to the former. Thus, provided there be a rule in the Qur’an or the sunna on a matter which according to our conceptions falls within the region of Constitutional Law or International Law, the rule must be given effect to unless that rule itself permits a departure from it. Thus no distinction exists in Islamic law between Constitutional Law and other law, the whole law to be found in the Qur’an and the sunna being a part of the law of the land for Muslim subjects of the State. Similarly if there be a rule in the Qur’an or the sunna relating to the State’s relations with other States or to the relations of Muslim subjects of the State with other States or the subjects of those States, the rule will have the same superiority of sanction as any other law to be found in the Qur’an or the sunna.

Therefore if Pakistan is or is intended to be converted into an Islamic State in the true sense of the word, its Constitution must contain the following five provisions:—

(1) that all laws to be found in the Qur’an or the sunna shall be deemed to be a part of the law of the land for Muslims and shall be enforced accordingly;
(2) that unless the Constitution itself is framed by ijma’-i-ummat, namely, by the agreement of the ulama and mujtahids of acknowledged status, any provision in the Constitution which is repugnant to the Qur’an or sunna shall to the extent of the repugnancy be void;
(3) that unless the existing laws of Pakistan are adapted by ijma’-i-ummat of the kind mentioned above, any provision in the existing law which is contrary to the Qur’an or sunna shall to the extent of the repugnancy be void;
(4) that any provision in any future law which is repugnant to Qur’an or sunna shall be void;
(5) that no rule of International Law and no provision in any convention or treaty to which Pakistan is a party, which is contrary to the Qur’an or the sunna shall be binding on any Muslim in Pakistan.

SOVEREIGNTY AND DEMOCRACY IN ISLAMIC STATE
That the form of Government in Pakistan, if that form is to comply with the principles of Islam, will not be democratic is conceded by the ulama. We have already explained the doctrine of sovereignty of the Qur’an and the sunna. The Objectives Resolution rightly recognised this position when it recited that all sovereignty rests with God Almighty alone. But the authors of that Resolution misused the words ‘sovereign’ and ‘democracy’ when they recited that the Constitution to be framed was for a sovereign State in which principles of democracy as enunciated by Islam shall be fully observed.

It may be that in the context in which they were used, these words could not be misunderstood by those who are well versed in Islamic principles, but both these words were borrowed from western political philosophy and in that sense they were both wrongly used in the Resolution. When it is said that a country is sovereign, the implication is that its people or any other group of persons in it are entitled to conduct the affairs of that country in any way they like and untrammelled by any considerations except those of expediency and policy. An Islamic State, however, cannot in this sense be sovereign, because it will not be competent to abrogate, repeal or do away with any law in the Qur’an or the sunna. Absolute restriction on the legislative power of a State is a restriction on the sovereignty of the people of that State and if the origin of this restriction lies elsewhere than in the will of the people, then to the extent of that restriction the sovereignty of the State and its people is necessarily taken away. In an Islamic State, sovereignty, in its essentially juristic sense, can only rest with Allah. In the same way, democracy means the rule of the demos, namely, the people, directly by them as in ancient Greece and Rome, or indirectly through chosen representatives as in modern democracies. If the power of the people in the framing of the Constitution or in the framing of the laws or in the sphere of executive action is subject to certain immutable rules, it cannot be said that they can pass any law that they like, or, in the exercise of executive functions, do whatever they like. Indeed if the legislature in an Islamic State is a sort of ijma’, the masses are expressly disqualified from taking part in it because ijma’-i-ummat in Islamic jurisprudence is restricted to ulama and mujtahids of acknowledged status and does not at all extend, as in democracy, to the populace.

OTHER INCIDENTS OF ISLAMIC STATE ACCORDING TO ULAMA

In the preceding pages we have attempted to state as clearly as we could the principles on which a religious State must be built if it is to be called an Islamic State. We now proceed to state some incidents of such State, with particular reference to the ulamas’ conception of it.

LEGISLATURE AND LEGISLATION

Legislature in its present sense is unknown to the Islamic system. The religiopolitical system which is called din-i-Islam is a complete system which contains in itself the mechanism for discovering and applying law to any situation that may arise. During the Islamic Republic there was no legislature in its modern sense and for every situation or emergency that arose law could be discovered and applied by the ulama. The law had been made and was not to be made, the only function of those entrusted with the administration of law being to discover the law for the purposes of the particular case, though when enunciated and applied it formed a precedent for others to follow. It is wholly incorrect, as has been suggested from certain quarters, that in a country like Pakistan, which consists of different communities, Muslim and non-Muslim, and where representation is allowed to non-Muslims with a right to vote on every subject that comes up, the legislature is a form of ijma’ or ijtihad, the reason being that ijtihad is not collective but only individual, and though ijma’ is collective, there is no place in it for those who are not experts in the knowledge of the law. This principle at once rules out the infidels (kuffar) whether they be people of Scriptures (ahl-i-kitab) or idolators (mushrikeen).

Since Islam is a perfect religion containing laws, express or derivable by ijma’ or ijtihad, governing the whole field of human activity, there is in it no sanction for what may, in the modern sense, be called legislation.

“Q.—Is the institution of legislature as distinguished from the institution of a person or body of persons entrusted with the interpretation of law, an integral part of an Islamic State?
A.—No. Our law is complete and merely requires interpretation by those who are experts in it. According to my belief no question can arise the law relating to which cannot be discovered from the Qur’an or the hadith.
Q.—Who were Sahib-ul-hall-i-wal-aqd
A.—They were the distinguished ulama of the time. These persons attained their status by reason of the knowledge of the law. They were not in any way analogous or similar to the legislature in modern democracy.”

The same view was expressed by Amir-i-Shari’at Sayyad Ata Ullah Shah Bukhari in one of his speeches reported in the ‘Azad’ of 22nd April, 1947, in the course of which he said that our din is complete and perfect and that it amounts to kufr to make more laws.

Maulana Abul Ala Maudoodi, however, is of the opinion that legislation in the true sense is possible in an Islamic State on matters which are not covered by the Qur’an, the sunna, or previous ijma’ and he has attempted to explain his point by reference to the institution of a body of persons whom the Holy Prophet, and after him the khulafa consulted on all matters relating to affairs of State. The question is one of some difficulty and great importance because any institution of legislature will have to be reconciled with the claim put forward by Maulana Abul Hasanat and some other religious divines that Islam is a perfect and exhaustive code wide enough to furnish an answer to any question that may arise relating to any human activity, and that it does not know of any “unoccupied field” to be filled by fresh legislation. There is no doubt that Islam enjoins consultation and that not only the Holy Prophet but also the first four caliphs and even their successors resorted to consultation with the leading men of the time, who for their knowledge of the law and piety could well be relied upon.

In the inquiry not much has been disclosed about the Majlis-i-Shura except what is contained in Maulana Abul Ala Maudoodi’s written statement which he supplied to the Court at its request. That there was a body of men who were consulted is true, but whether this was a standing body and whether its advice had any legal or binding force, seems somewhat doubtful. These men were certainly not elected in the modern way, though their representative character cannot be disputed. Their advice was certainly asked ad hoc, but that they were competent to make law as the modern legislatures make laws is certainly not correct. The decisions taken by them undoubtedly served as precedents and were in the nature of ijma’, which is not legislation but the application of an existing law to a particular case. When consulted in affairs of State, their functions were truly in the nature of an advice given by a modern cabinet but such advice is not law but only a decision.

Nor can the legislature in a modern State correspond to ijma’ because as we have already pointed out, the legislature legislates while the ulama of Majlis-i-Shura who were called upon to determine what should be the decision on a particular point which was not covered by the Qur’an and the sunna, merely sought to discover and apply the law and not to promulgate the law, though the decision when taken had to be taken not only for the purposes of the particular case but for subsequent occasions as a binding precedent.

An intriguing situation might arise if the Constitution Act provided that any provision of it, if it was inconsistent with the Qur’an or the sunna, would be void, and the intra vires of a law made by the legislature were questioned before the Supreme Court on the ground that the institution of legislature itself was contrary to the Qur’an and the sunna.

POSITION OF NON-MUSLIMS

The ground on which the removal of Chaudhri Zafrullah Khan and other Ahmadis occupying key positions in the State is demanded is that the Ahmadis are non-Muslims and that therefore like zimmies in an Islamic State they are not eligible for appointment to higher offices in the State. This aspect of the demands has directly raised a question about the position of non-Muslims in Pakistan if we are to have an Islamic Constitution.

According to the leading ulama the position of non-Muslims in the Islamic State of Pakistan will be that of zimmies and they will not be full citizens of Pakistan because they will not have the same rights as Muslims They will have no voice in the making of the law, no right to administer the law and no right to hold public offices.

A full statement of this position will be found in the evidence of Maulana Abul Hasanat Sayyad Muhammad Ahmad Qadri, Maulana Ahmad Ali, Mian Tufail Muhammad and Maulana Abdul Haamid Badayuni. Maulana Abul Hasanat on being questioned on the subject stated as follows :—

“Q.—If we were to have an Islamic State in Pakistan, what will be the position of the kuffar (non-Muslims)? Will they have a voice in the making of laws, the right of administering the law and the right to hold public offices? A.—Their position will be that of zimmies. They will have no voice in the making of laws, no right to administer the law and no right to hold public offices. Q.—In an Islamic State can the head of the State delegate any part of his powers to kuffar? A.—No.”

Maulana Ahmad Ali, when questioned, said:— “Q.—if we were to have an Islamic State in Pakistan, what will be the position of the kuffar? Will they have a hand in the making of the law, the right to administer the law and the right to hold public offices ? A.—Their position will be that of zimmies. They will have no say in the making of law and no right to administer the law. Government may, however, permit them to hold any public office”.

Mian Tufail Muhammad stated as follows :— “Q.—Read the article on minorities’ rights in the ‘Civil and Military Gazette’ of 13th October, 1953, and say whether it correctly represents your view of an Islamic State? (It was stated in the articles that minorities would have the same rights as Muslims). A.—I have read this article and do not acknowledge these rights for the Christians or other non-Muslims in Pakistan if the State is founded on the ideology of the Jama’at”.

The confusion on this point in the mind of Maulana Abdul Haamid Badayuni, President, Jami’at-ul-Ulama-i-Pakistan, is apparent from the following: —

“Q.—Have you ever read the aforesaid speech (the speech of the Quaid-i-Azam to the Constituent Assembly of Pakistan on 11th August, 1947)? A.—Yes, I have read that speech. Q.—Do you still agree with the conception of Pakistan that the Quaid-i-Azam presented to the Constituent Assembly in this speech in which he said that thereafter there would be only one Pakistan nation, consisting of Muslims and non-Muslims, having equal civic rights, without any distinction of race, religion or creed and that religion would be merely a private affair of the individual ? A.—I accept the principle that all communities, whether Muslims or non-Muslims, should have, according to their population, proper representation in the administration of the State and legislation, except that non-Muslims cannot be taken in the army or the judiciary or be appointed as Ministers or to other posts involving the reposing of confidence. Q.—Are you suggesting that the position of non-Muslims would be that of zimmies or any better ? A.—No. By zimmies are meant non-Muslim people of lands which have been conquered by an Islamic State, and the word is not applicable to non-Muslim minorities already living in an Islamic State. Such minorities are called mu’ahids, i.e. those people with whom some agreement has been made. Q.—What will be their status if there is no agreement with them ? A.—In that case such communities cannot have any rights of citizenship. Q.—Will the non-Muslim communities inhabiting Pakistan be called by you as mu’ahids? A.—No, not in the absence of an agreement with them. To my knowledge there is no such agreement with such communities in Pakistan.”

So, according to the evidence of this learned divine, the non-Muslims of Pakistan will neither be citizens nor will they have the status of zimmies or of mu’ahids. During the Islamic Republic, the head of the State, the khalifa, was chosen by a system of election, which was wholly different from the present system of election based on adult or any other form of popular suffrage. The oath of allegiance (ba’it) rendered to him possessed a sacramental virtue, and on his being chosen by the consensus of the people (ijma’-ul-ummat) he became the source of all channels of legitimate Government. He and he alone then was competent to rule, though he could delegate his powers to deputies and collect around him a body of men of outstanding piety and learning, called Majlis-i-Shura or Ahl-ul-Hall-i-wal-Aqd. The principal feature of this system was that the kuffar, for reasons which are too obvious and need not be stated, could not be admitted to this majlis and the power which had vested in the khalifa could not be delegated to the kuffar. The khalifa was the real head of the State, all power vesting in him and not a powerless individual like the President of a modern democratic State who is merely to sign the record of decisions taken by the Prime Minister and his Cabinet. He could not appoint non-Muslims to important posts, and could give them no place either in the interpretation or the administration of the law, the making of the law by them, as already pointed out, being a legal impossibility.

This being the position, the State will have to devise some machinery by which the distinction between a Muslim and a non-Muslim may be determined and its consequences enforced. The question, therefore, whether a person is or is not a Muslim will be of fundamental importance, and it was for this reason that we asked most of the leading ulama, to give their definition of a Muslim, the point being that if the ulama of the various sects believed the Ahmadis to be kafirs, they must have been quite clear in their minds not only about the grounds of such belief but also about the definition of a Muslim because the claim that a certain person or community is not within the pale of Islam implies on the part of the claimant an exact conception of what a Muslim is. The result of this part of the inquiry, however, has been anything but satisfactory, and if considerable confusion exists in the minds of our ulama on such a simple matter, one can easily imagine what the differences on more complicated matters will be. Below we reproduce the definition of a Muslim given by each alim in his own words. This definition was asked after it had been clearly explained to each witness that he was required to give the irreducible minimum conditions which, a person must satisfy to be entitled to be called a Muslim and that the definition was to be on the principle on which a term in grammar is defined.

Here is the result : —

Maulana Abul Hasanat Muhammad Ahmad Qadri, President, Jami’at-ul-Ulamai- Pakistan — “Q.— What is the definition of a Muslim ? A — (1) He must believe in the Unity of God. (2) He must believe in the prophet of Islam to be a true prophet as well as in all other prophets who have preceded him, (3) He must believe in the Holy Prophet of Islam as the last of the prophets (khatam-un-nabiyin). (4) He must believe in the Qur’an as it was revealed by God to the Holy Prophet of Islam. (5) He must believe as binding on him the injunctions of the Prophet of Islam. (6) He must believe in the qiyamat. Q.—Is a tarik-us-salat a Muslim ? A.—Yes, but not a munkir-us-salat”

Maulana Ahmad Ali, President, Jami’at-ul-Ulama-i-Islam, Maghribi Pakistan — “Q.— Please define a Muslim ? A.—A person is a Muslim if he believes (1) in the Qur’an and (2) what has been said by the prophet. Any person who possesses these two qualifications is entitled to be called a Muslim without his being required to believe in anything more or to do anything more.”

Maulana Abul Ala Maudoodi, Amir Jama’at-i-Islami — “Q.—Please define a Muslim ? A.—A person is a Muslim if he believes (1) in tauheed, (2) in all the prophets (ambiya), (3) all the books revealed by God, (4) in mala’ika (angels), and (5) yaum-ul-akhira (the Day of Judgment). Q.—Is a mere profession of belief in these articles sufficient to entitle a man to call himself a Musalman and to be treated as a Musalman in an Islamic State ? A.—Yes. Q.—If a person says that he believes in all these things, does any one have a right to question the existence of his belief ? A.—The five requisites that I have mentioned above are fundamental and any alteration in anyone of these articles will take him out of the pale of Islam.”

Ghazi Siraj-ud-Din Munir— “Q.—Please define a Muslim ? A.—I consider a man to be a Muslim if he professes his belief in the kalima, namely, La Ilaha Illalah-o-Muhammad-ur-Rasulullah, and leads a life in the footsteps of the Holy Prophet.”

Mufti Muhammad Idris, Jamia Ashrafia, Nila Gumbad, Lahore— “Q.—Please give the definition of a Musalman ? A.—The word ‘Musalman’ is a Persian one. There is a distinction between the word ‘Musalman’ which is a Persian word for Muslim and the word ‘momin’. It is impossible for me to give a complete definition of the word ‘momin’. I would require pages and pages to describe what a momin is. A person is a Muslim who professes to be obedient to Allah. He should believe in the Unity of God, prophethood of the ambiya and in the Day of Judgment. A person who does not believe in the azan or in the qurbani goes outside the pale of Islam. Similarly, there are a large number of other things which have been received by tavatir from our prophet. In order to be a Muslim, he must believe in all these things. It is almost impossible for me to give a complete list of such things.”

Hafiz Kifayat Hussain, Idara-i-Haquq-i-Tahaffuz-i-Shia— “Q.—Who is a Musalman? A.—A person is entitled to be called a Musalman if he believes in (1) tauheed, (2) nubuwwat and (3) qiyamat. These are the three fundamental beliefs which a person must profess to be called a Musalman. In regard to these three basic doctrines there is no difference between the Shias and the Sunnies. Besides the belief in these three doctrines, there are other things called ‘zarooriyat-i-din’ which a person must comply with in order to be entitled to be called a Musalman. These will take me two days to define and enumerate. But as an illustration I might state that the respect for the Holy Book, wajoob-i-nimaz, wajoob-i-roza, wajoob-i-hajj-ma’a-sharait, and other things too numerous to mention, are among the ‘zarooriyat-i-din’ ”

Maulana Abdul Hamid Badayuni, President, Jami’at-ul-Ulama-i-Pakistan : “Q.—Who is a Musalman according to you ? A.—A person who believes in the zarooriyat-i-din is called a momin and every momin is entitled to be called a Musalman. Q.—What are these zarooriyat-i-din ? A.—A person who believes in the five pillars of Islam and who believes in the rasalat of our Holy Prophet fulfils the zarooriyat-i-din. Q.—Have other actions, apart from the five arakan, anything to do with a man being a Muslim or being outside the pale of Islam? (Note—Witness has been explained that by actions are meant those rules of moral conduct which in modern society are accepted as correct.) A.—Certainly. Q.—Then you will not call a person a Muslim who believes in arakan-ikhamsa and the rasalat of the prophet but who steals other peoples’ things, embezzles property entrusted to him, has an evil eye on his neighbour’s wife and is guilty of the grossest ingratitude to his benefector? A.—Such a person, if he has the belief already indicated, will be a Muslim despite all this”.

Maulana Muhammad Ali Kandhalvi, Darush-Shahabia, Sialkot — “Q.—Please define a Musalman? A.—A person who in obedience to the commands of the prophet performs all the zarooriyat-i-din is a Musalman. Q.—Can you define zarooriyat-i-din ? A.—Zarooriyat-i-din are those requirements which are known to every Muslim irrespective of his religious knowledge. Q.—Can you enumerate zarooriyat-i-din ? A.—These are too numerous to be mentioned. I myself cannot enumerate these zarooriyat. Some of the zarooriyat-i-din may be mentioned as salat, saum, etc.”

Maulana Amin Ahsan Islahi — “Q.—Who is a Musalman? A.—There are two kinds of Musalmans, a political (siyasi) Musalman and a real (haqiqi) Musalman. In order to be called a political Musalman, a person must: (1) believe in the Unity of God, (2) believe in our Holy Prophet being khatam-un-nabiyin, i.e., ‘final authority’ in all matters relating to the life of that person, (3) believe that all good and evil comes from Allah, (4) believe in the Day of Judgment, (5) believe in the Qur’an to be the last book revealed by Allah, (6) perform the annual pilgrimage to Mecca, (7) pay the zaka’at, (8) say his prayers like the Musalmans, (9) observe all apparent rules of Islami mu’ashira, and (10) observe the fast (saum).

If a person satisfies all these conditions he is entitled to the rights of a full citizen of an Islamic State. If any one of these conditions is not satisfied, the person concerned will not be a political Musalman. (Again said) It would be enough for a person to be a Musalman if he merely professes his belief in these ten matters irrespective of whether he puts them into practice or not. In order to be a real Musalman, a person must believe in and act on all the injunctions by Allah and his prophet in the manner in which they have been enjoined upon him. Q.—Will you say that only the real Musalman is ‘mard-i-saleh’ ? A.—Yes. Q.—do we understand you aright that in the case of what you have called a political (siyasi) Musalman, belief alone is necessary, while in the case of a haqiqi Musalman there must not only be belief but also action? A.—No, you have not understood me aright. Even in the case of a political (siyasi) Musalman action is necessary but what I mean to say is that if a person does not act upon the belief that is necessary in the case of such a Musalman, he will not be outside the pale of a political (siyasi) Musalman. Q.—If a political (siyasi) Musalman does not believe in things which you have stated to be necessary, will you call such a person be-din ? A.—No, I will call him merely be-amal”.

The definition by the Sadr Anjuman Ahmadiya, Rabwah, in its written statement is that a Muslim is a person who belongs to the ummat of the Holy Prophet and professes belief in kalima-i-tayyaba.

Keeping in view the several definitions given by the ulama, need we make any comment except that no two learned divines are agreed on this fundamental. If we attempt our own definition as each learned divine has done and that definition differs from that given by all others, we unanimously go out of the fold of Islam. And if we adopt the definition given by any one of the ulama, we remain Muslims according to the view of that alim but kafirs according to the definition of every one else.

APOSTASY

Apostasy in an Islamic State is punishable with death. On this the ulama are practically unanimous (vide the evidence of Maulana Abul Hasanat Sayyad Muhammad Ahmad Qadri, President, Jami’at-ul-Ulama-i-Pakistan, Punjab; Maulana Ahmad Ali, Sadr Jami’at-ul-Ulama-i-Islam, West Pakistan; Maulana Abul Ala Maudoodi, founder and ex-Amir-i-Jama’at-i-Islami, Pakistan; Mufti Muhammad Idris, Jami’Ashrafia, Lahore, and Member, Jami’at-ul-Ulama-i-Pakistan; Maulana Daud Ghaznavi, President, Jami’at-i-Ahl-i-Hadith, Maghribi Pakistan; Maulana Abdul Haleem Qasimi, Jami’at-ul-Ulama-i-Islam, Punjab; and Mr. Ibrahim Ali Chishti). According to this doctrine, Chaudhri Zafrullah Khan, if he has not inherited his present religious beliefs but has voluntarily elected to be an Ahmadi, must be put to death. And the same fate should befall Deobandis and Wahabis, including Maulana Muhammad Shafi Deobandi, Member, Board of Talimat-i-Islami attached to the Constituent Assembly of Pakistan, and Maulana Daud Ghaznavi, if Maulana Abul Hasanat Sayyad Muhammad Ahmad Qadri or Mirza Raza Ahmad Khan Barelvi, or any one of the numerous ulama who are shown perched on every leaf of a beautiful tree in the fatwa, Ex. D. E. 14, were the head of such Islamic State. And if Maulana Muhammad Shafi Deobandi were the head of the State, he would exclude those who have pronounced Deobandis as kafirs from the pale of Islam and inflict on them the death penalty if they come within the definition of murtadd, namely, if they have changed and not inherited their religious views.

The genuineness of the fatwa, Ex. D. E. 13, by the Deobandis which says that Asna Ashari Shias are kafirs and murtadds, was questioned in the course of enquiry, but Maulana Muhammad Shafi made an inquiry on the subject from Deoband, and received from the records of that institution the copy of a fatwa signed by all the teachers of the Darul Uloom including Maulana Muhammad Shafi himself which is to the effect that those who do not believe in the sahabiyyat of Hazrat Siddiq Akbar and who are qazif of Hazrat Aisha Siddiqa and have been guilty of tehrif of Qur’an are kafirs. This opinion is also supported by Mr. Ibrahim Ali Chishti who has studied and knows his subject. He thinks the Shias are kafirs because they believe that Hazrat Ali shared the prophethood with our Holy Prophet. He refused to answer the question whether a person who being a Sunni changes his view and agrees with the Shia view would be guilty of irtidad so as to deserve the death penalty. According to the Shias all Sunnis are kafirs, and Ahl-i-Qur’an; namely, persons who consider hadith to be unreliable and therefore not binding, are unanimously kafirs and so are all independent thinkers. The net result of all this is that neither Shias nor Sunnis nor Deobandis nor Ahl-i-Hadith nor Barelvis are Muslims and any change from one view to the other must be accompanied in an Islamic State with the penalty of death if the Government of the State is in the hands of the party which considers the other party to be kafirs. And it does not require much imagination to judge of the consequences of this doctrine when it is remembered that no two ulama have agreed before us as to the definition of a Muslim. If the constituents of each of the definitions given by the ulama are given effect to, and subjected to the rule of ‘combination and permutation’ and the form of charge in the Inquisition’s sentence on Galileo is adopted mutatis mutandis as a model, the grounds on which a person may be indicted for apostasy will be too numerous to count.

In an earlier part of the report we have referred to the proscription of the ‘Ashshahab’, a pamphlet written by Maulana Shabbir Ahmad Usmani who later became Sheikh-ul-Islam-i-Pakistan. In that pamphlet the Maulana had attempted to show from the Qur’an, the sunna, the ijma’ and qayas that in Islam the punishment for apostasy (irtidad) simpliciter is death. After propounding the theological doctrine the Maulana had made in that document a statement of fact that in the time of the Caliph Siddiq-i-Akbar and the subsequent Caliphs vast areas of Arabia became repeatedly red with the blood of apostates. We are not called upon to express any opinion as to the correctness or otherwise of this doctrine but knowing that the suggestion to the Punjab Government to proscribe this pamphlet had come from the Minister for the Interior we have attempted to inquire of ourselves the reasons for Government’s taking a step which ex hypothesi amounted to condemning a doctrine which the Maulana had professed to derive from the Qur’an and the sunna. The death penalty for irtidad has implications of a far-reaching character and stamps Islam as a religion of fanatics, which punishes all independent thinking. The Qur’an again and again lays emphasis on reason and thought, advises toleration and preaches against compulsion in religious matters but the doctrine of irtidad as enunciated in this pamphlet strikes at the very root of independent thinking when it propounds the view that anyone who, being born a Muslim or having embraced Islam, attempts to think on the subject of religion with a view, if he comes to that conclusion, to choose for himself any religion he likes, has the capital penalty in store for him. With this implication Islam becomes an embodiment of complete intellectual paralysis. And the statement in the pamphlet that vast areas of Arabia were repeatedly bespattered with human blood, if true, could only lend itself to this inference that even when Islam was at the height of its splendour and held absolute sway in Arabia there were in that country a large number of people who turned away from that religion and preferred to die than to remain in that system. It must have been some such reaction of this pamphlet on the mind of the Minister for the Interior which prompted him to advise the Punjab Government to proscribe the pamphlet. Further the Minister who was himself well-versed in religious matters must have thought that the conclusion drawn by the author of the pamphlet which was principally based on the precedent mentioned in paras. 26, 27 and 28 of the Old Testament and which is only partially referred to in the Qur’an in the 54th verse of the Second Sura, could not be applicable to apostasy from Islam and that therefore the author’s opinion was in fact incorrect, there being no express text in the Qur’an for the death penalty for apostasy. On the contrary each of the two ideas, one underlying the six brief verses of Surat-ul-Kafiroon and the other the La Ikrah verse of the second Sura, has merely to be understood to reject as erroneous the view propounded in the ‘Ash-Shahab’. Each of the verses in Surat-ul-Kafiroon which contains thirty words and no verse of which exceeds six words, brings out a fundamental trait in man engrained in him since his creation while the La Ikrah verse, the relevant portion of which contains only nine words, states the rule of responsibility of the mind with a precision that cannot be surpassed. Both of these texts which are an early part of the Revelation are, individually and collectively, the foundation of that principle which human society, after centuries of conflict, hatred and bloodshed, has adopted in defining one of the most important fundamental rights of man. But our doctors would never dissociate chauvinism from Islam.

PROPAGATION OF OTHER RELIGIONS

Closely allied to the punishment for apostasy is the right of non-Muslims publicly to preach their religion. The principle which punishes an apostate with death must be applicable to public preaching of kufr and it is admitted by Maulana Abul Hasanat, Ghazi Siraj-ud-Din Munir and Master Taj-ud-Din Ansari, though the last subordinates his opinion to the opinion of the ulama, that any faith other than Islam will not be permitted publicly to be preached in the State. And Maulana Abul Ala Maudoodi, as will appear from his pamphlet ‘Punishment in Islam for an apostate’, has the same views on the subject.

Ghazi Siraj-ud-Din Munir, when questioned on this point, replied :—“Q.—What will you do with them (Ahmadis) if you were the head of the Pakistan State ? A.—I would tolerate them as human beings but will not allow them the right to preach their religion”.

The prohibition against public preaching of any non-Muslim religion must logically follow from the proposition that apostasy will be punished with death and that any attack on, or danger to Islam will be treated as treason and punished in the same way as apostasy.

JIHAD
Earlier we have pointed out that one of the doctrines on which the Musalmans and Ahmadis are at variance is that of jihad. This doctrine at once raises a host of other allied matters such as the meanings of ghazi, shahid, jihad-bis-saif, jihad fi sabili’llah, dar-ul-Islam, dar-ul-harb, hijrat, ghanima, khums and slavery, and the conflict or reconciliation of these conceptions with modern international problems such as aggression, genocide, international criminal jurisdiction, international conventions and rules of public international law.

An Islamic State is dar-ul-Islam, namely, a country where ordinances of Islam are established and which is under the rule of a Muslim sovereign. Its inhabitants are Muslims and also non-Muslims who have submitted to Muslim control and who under certain restrictions and without the possibility of full citizenship are guaranteed their lives and property by the Muslim State. They must, however, be people of Scriptures and may not be idolaters. An Islamic State is in theory perpetually at war with the neighbouring non-Muslim country, which at any time may become dar-ul-harb, in which case it is the duty of the Muslims of that country to leave it and to come over to the country of their brethren in faith. We put this aspect to Maulana Abul Ala Maudoodi and reproduce his views :—

“Q.—is a country on the border of dar-ul-Islam always qua an Islamic Statein the position of dar-ul-harb ? A.—No. In the absence of an agreement to the contrary, the Islamic State will be potentially at war with the non-Muslim neighbouring country. The non-Muslim country acquires the status of dar-ul-harb only after the Islamic State declares a formal war against it”.

According to Ghias-ul-Lughat, dar-ul-harb is a country belonging to infidels which has not been subdued by Islam, and the consequences of a country becoming darul-harb are thus stated in the Shorter Encyclopaedia of Islam :—

“When a country does become a dar-ul-harb, it is the duty of all Muslims to withdraw from it, and a wife who refuses to accompany her husband in this, is ipso facto divorced”.

Thus in case of a war between India and Pakistan, if the latter is an Islamic State, we must be prepared to receive forty million Muslims from across the border into Pakistan.

In fact, Maulana Abdul Haamid Badayuni, President, Jami’at-ul-Ulama-i- Pakistan, thinks that a case for hijrat already exists for the Musalmans of India. The following is his view on this subject :—“Q.—Do yon call your migration to Pakistan as hijrat in the religious sense ? A.—Yes”.

We shall presently point out why Mirza Ghulam Ahmad’s version of the doctrine of jihad is relied on as a ground for his and his community’s kufr, but before we do that it is necessary first to state how jihad has been or is understood by the Musalmans. There are various theories about jihad which vary from the crude notion of a megalomaniac moved by religious frenzy going out armed with sword and indiscriminately slaughtering non-Muslims in the belief that if he dies in the combat he becomes a shahid and if he succeeds in killing attains the status of a ghazi, to the conception that a Musalman throughout his life is pitted against kufr, kufr here being used in the sense of evil and wrong, and that his principal activity in life is to strive by argument a where necessary by force to spread Islam until it becomes a world religion. In the latter case he fights not for any personal end but because he considers such strife as a duty and an obligation which he owes to Allah and the only recompense for which is the pleasure of Allah. The Shorter Encyclopedia of Islam contains the following brief article on djihad :—
“DJIHAD (A), holy war. The spread of Islam by arms is a religious duty upon Muslims in general. It narrowly escaped being a sixth rukn, or fundamental duty, and is indeed still so regarded by the descendants of the Kharidjis. This position was reached gradually but quickly. In the Meccan Suras of the Qur’an patience under attack is taught ; no other attitude was possible. But at Medina the right to repel attack appears, and gradually it became a prescribed duty to fight against and subdue the hostile Meccans.

Whether Muhammad himself recognised that his position implied steady and unprovoked war against the unbelieving world until it was subdued to Islam may be in doubt. Traditions are explicit on the point ; but the Qur’anic passages speak always of the unbelievers who are to be subdued as dangerous or faithless. Still, the story of his writing to the powers around him shows that such a universal position was implicit in his mind, and it certainly developed immediately after his death, when the Muslim armies advanced out of Arabia. It is now a fard ala’l-kifaya, a duty in general on all male, free, adult Muslims, sane in mind and body and having means enough to reach the Muslim army, yet not a duty necessarily incumbent on every individual but sufficiently performed when done by a certain number. So it must continue to be done until the whole world is under the rule of Islam. It must be controlled or headed by a Muslim sovereign or imam. As the imam of the Shias is now invisible, they cannot have a djihad until he reappears. Further, the requirement will be met if such a sovereign makes an expedition once a year, or, even, in the later view, if he makes annual preparation for one. The people against whom the djihad is directed must first be invited to embrace Islam. On refusal they have another choice. They may submit to Muslim rule, become dhimmis (q. v.) and pay djizya and kharadj (q. v.) or fight. In the first case, their lives, families and property are assured to them, but they have a definitely inferior status, with no technical citizenship, and a standing only as protected wards. If they fight, they and their families may be enslaved and all their property seized as booty, four-fifths of which goes to the conquering army. If they embrace Islam, and it is open to them to do so even when the armies are face to face, they become part of the Muslim community with all its rights and duties. Apostates must be put to death. But if a Muslim country is invaded by unbelievers, the imam may issue a general summons calling all Muslims there to arms, and as the danger grows so may be the width of the summons until the whole Muslim world is involved. A Muslim who dies fighting in the path of Allah (fi sabil Allah) is martyr (shahid) and is assured of Paradise and of peculiar privileges there. Such a death was, in the early generations, regarded as the peculiar crown of a pious life. It is still, on occasions, a strong incitement, but when Islam ceased to conquer it lost its supreme value. Even yet, however, any war between Muslims and non-Muslims must be a djihad with its incitements and rewards. Of course, such modern movements as the so-called Mu’tazili in India and the Young Turk in Turkey reject this and endeavour to explain away its basis; but the Muslim masses still follow the unanimous voice of the canon lawyers. Islam must be completely made over before the doctrine of djihad can be eliminated”.

The generally accepted view is that the fifth verse to Sura-i-Tauba (Sura IX) abrogated the earlier verses revealed in Mecca which permitted the killing of kuffar only in self-defence. As against this the Ahmadis believe that no verso in the Qur’an was abrogated by another verse and that both sets of verses, namely, the Meccan verses and the relative verses in Sura-i-Tauba have different scopes and can stand together. This introduces the difficult controversy of nasikh and mansukh, with all its implications. It is argued on behalf of the Ahmadis that the doctrine of nasikh and mansukh is opposed to the belief in the existence of an original Scripture in Heaven, and that implicit in this doctrine is the admission that unless the verse alleged to be repealed was meant for a specific occasion and by the coming of that occasion fulfilled its purpose and thus spent itself, God did not know of the subsequent circumstances which would make the earlier verse inapplicable or lead to an undesired result.

The third result of this doctrine, it is pointed out, cuts at the very root of the claim that laws of Islam are immutable and inflexible because if changed circumstances made a new revelation necessary, any change in the circumstances subsequent to the completion of the revelation would make most of the revelation otiose or obsolete.

We are wholly incompetent to pronounce on the merits of this controversy but what has to be pointed out is the result to which the doctrine of jihad will lead if, as appears from the article in the Shorter Encyclopaedia of Islam and other writings produced before us including one by Maulana Abul Ala Maudoodi and another by Maulana Shabbir Ahmad Usmani, it involves the spread of Islam by arms and conquest. ‘Aggression’ and ‘genocide’ are now offences against humanity for which under sentences pronounced by different International tribunals at Nuremburg and Tokio the war lords of Germany and Japan had to forfeit their lives, and there is hardly any difference between the offences of aggression and genocide on the one hand and the doctrine of spread of Islam by arms and conquest on the other. An International Convention on genocide is about to be concluded but if the view of jihad presented to us is correct, Pakistan cannot be a party to it. And while the following verses in the Mecca Suras :—

Sura II, verses 190 and 193 :190. “Fight in the Cause of God Those who fight you,
But do not transgress limits ;
For God loveth not transgressors”.
193. “And fight them on
Until there is no more
Tumult or oppression,
And there prevail
Justice and faith in God ;
But if they cease,
Let there be no hostility
Except to those
Who practise oppression”.
Sura XXII, verses 39 and 40:
39. “To those against whom
War is made, permission
Is given (to fight) because
They are wronged;— and verily,
God is most Powerful
For their aid;—”
40. “(They are) those who have
Been expelled from their homes
In defiance of right,—
(For no cause) except
That they say, ‘Our Lord
Is God.’ Did not God
Check one set of people
By means of another,
There would surely have been
Pulled down monasteries, churches,
Synagogues, and mosques, in which
The name of God is commemorated
In abundant measure. God will
Certainly aid those who
Aid His (cause);—for verily
God is Full of Strength,
Exalted in Might,
(Able to enforce His Will),”

contain in them the sublime principle which international jurists have only faintly begun to discover, we must go on preaching that aggression is the chief characteristic of Islam. The law relating to prisoners of war is another branch of Islamic law which is bound to come in conflict with International Law.

As for instance, in matters relating to the treatment of prisoners of war, we shall have to be governed by Maulana Abul Ala Maudoodi’s view, assuming that view is based on the Qur’an and the sunna, which is as follows :—

“Q.—Is there a law of war in Islam? A.—Yes. Q.—Does it differ fundamentally from the modern International Law of war? A.—These two systems are based on a fundamental difference. Q.—What rights have non-Muslims who are taken prisoners of war in a jihad? A.—The Islamic law on the point is that if the country of which these prisoners are nationals pays ransom, they will be released. An exchange of prisoners is also permitted. If neither of these alternatives is possible, the prisoners will be converted into slaves for ever. If any such person makes an offer to pay his ransom out of his own earnings, he will be permitted to collect the money necessary for the fidya (ransom). Q.—Are you of the view that unless a Government assumes the form of an Islamic Government, any war declared by it is not a jihad? A.—No. A war may be declared to be a jihad if it is declared by a national Government of Muslims in the legitimate interests of the State. I never expressed the opinion attributed to me in Ex. D. E. 12:— “Raha yeh masala keh agar hukumat-i-Pakisten apni maujuda shukl-o-surat ke sath Indian Union ke sath apne mu’ahadat khatm kar-ke i’lan-i-jang bar bhi de to kya us-ki yeh jang jihad ke hukam men a-ja’egi ? Ap ne is bare men jo rae zahir ki hai woh bilkul darust hai – Jab-tak hukumat Islami nizam ko ikhtiyar kar-ke Islami nah ho jae us waqt tak us-ki kisi jang ko jihad kehna aisa hi hai jaisa kisi ghair Muslim ke Azad Kashmir ki fauj men bharti ho-kar larne ko jihad aur us-ki maut ko shahadat ka nam dediya jae – Maulana ka jo mudd’a hai woh yeh hai keh mu’ahadat ki maujudgi men to hukumat ya us-ke shehriyon ka is jang men sharik hona shar’-an ja’iz hi nahin – Agar hukumat mu’ahadat khatm kar-ke jang ka i’lan kar-de to hukumat ki jang to jihad phir bhi nahin hogi ta-an keh hukumat Islami nah ho jae.’

(translation)

‘The question remains whether, even if the Government of Pakistan, in its present form and structure, terminates her treaties with the Indian Union and declares war against her, this war would fall under the definition of jihad? The opinion expressed by him in this behalf is quite correct. Until such time as the Government becomes Islamic by adopting the Islamic form of Government, to call any of its wars a jihad would be tantamount to describing the enlistment and fighting of a non-Muslim on the side of the Azad Kashmir forces jihad and his death martyrdom. What the Maulana means is that, in the presence of treaties, it is against Shari’at, if the Government or its people participate in such a war. If the Government terminates the treaties and declares war, even then the war started by Government would not be termed jihad unless the Government becomes Islamic’.

About the view expressed in this letter being that of Maulana Abul Ala Maudoodi, there is the evidence of Mian Tufail Muhammad, the writer of the letter, who states: “Ex. D. E. 12 is a photostat copy of a letter which I wrote to someone whose name I do not now remember.”

Maulana Abul Hasanat Muhammad Ahmad Qadri’s view on this point is as
follows:—“Q.—Is there a law of war in Islam? A.—Yes. Q.—Does it differ in fundamentals from the present International Law? A.—Yes. Q.—What are the rights of a person taken prisoner in war? A.—He can embrace Islam or ask for aman, in which case he will be treated as a musta’min. If he does not ask for aman, he would be made a slave”. Similar is the opinion expressed by Mian Tufail Muhammad of Jam’at-i-Islami who says:— “Q.—Is there any law of war in Islamic laws? A.—Yes. Q.—If that comes into conflict with International Law, which will you follow? A.—Islamic law. Q.—Then please state what will be the status of prisoners of war captured by your forces? A.—I cannot reply to this off hand. I will have to study the point.” Of course ghanima (plunder) and khums (one-fifth) if treated as a necessary incident of jihad will be treated by international society as a mere act of brigandage.

REACTION ON MUSLIMS OF NON-MUSLIM STATES
The ideology on which an Islamic State is desired to be founded in Pakistan must have certain consequences for the Musalmans who are living in countries under non-Muslim sovereigns.

We asked Amir-i-Shari’at Sayyad Ataullah Shah Bukhari whether a Muslim could be a faithful subject of a non-Muslim State and reproduce his answer:—“Q.—In your opinion is a Musalman bound to obey orders of a kafirGovernment? A.—It is not possible that a Musalman should be faithful citizen of a non-MuslimGovernment. Q.—Will it be possible for the four crore of Indian Muslims to be faithful citizensof their State? A—No.”

The answer is quite consistent with the ideology which has been pressed before us, but then if Pakistan is entitled to base its Constitution on religion, the same right must be conceded to other countries where Musalmans are in substantial minorities or if they constitute a preponderating majority in a country where sovereignty rests with a non-Muslim community. We, therefore, asked the various ulama whether, if non-Muslims in Pakistan were to be subjected to this discrimination in matters of citizenship, the ulama would have any objection to Muslims in other countries being subjected to a similar discrimination. Their reactions to this suggestion are reproduced below:—

Maulana Abul Hasanat Sayyed Muhammad Ahmad Qadri, President, Jami’at-ul-Ulama-i-Pakistan:—“Q.—You will admit for the Hindus, who are in a majority in India, the right to have a Hindu religious State? A.—Yes. Q.—Will you have any objection if the Muslims are treated under that form of Government as malishes or shudras under the law of Manu? A.— No.”

Maulana Abul Ala Maudoodi :—“Q.—If we have this form of Islamic Government in Pakistan, will you permit Hindus to base their Constitution on the basis of their own religion? A—Certainly. I should have no objection even if the Muslims of India are treated in that form of Government as shudras and malishes and Manu’s laws are applied to them, depriving them of all share in the Government and the rights of a citizen. In fact such a state of affairs already exists in India.”

Amir-i-Shari’at Sayyad Ata Ullah Skak Bukhari :—“Q.—How many crores of Muslims are there in India? A.—Four crores. Q.—Have you any objection to the law of Manu being applied to them according to which they will have no civil right and will be treated as malishes and shudras? A.—I am in Pakistan and I cannot advise them.”

Mian Tufail Muhammad of Jama’at-i-Islami :—“Q.—What is the population of Muslims in the world? A.—Fifty crores. Q.—If the total population of Muslims of the world is 50 crores, as you say, and the number of Muslims living in Pakistan, Saudi Arabia, Yemen, Indonesia, Egypt, Persia, Syria, Lebanon, Trans-Jordan, Turkey and Iraq does not exceed 20 crores, will not the result of your ideology beto convert 30 crores of Muslims in the world into hewers of wood anddrawers of water? A.—My ideology should not affect their position. Q.—Even if they are subjected to discrimination on religious grounds and denied ordinary rights of citizenship ? A.—Yes.”
This witness goes to the extent of asserting that even if a non-Muslim Government were to offer posts to Muslims in the public services of the country, it will be their duty to refuse such posts.

Ghazi Siraj-ud-Din Munir :—“Q.—Do you want an Islamic State in Pakistan? A.—Surely. Q.—What will be your reaction if the neighbouring country was to found their political system on their own religion? A.—They can do it if they like. Q.—Do you admit for them the right to declare that all Muslims in India, areshudras and malishes with no civil rights whatsoever? A.—We will do our best to see that before they do it their political sovereignty is gone. We are too strong for India. We will be strongenough to prevent India from doing this.Q.—Is it a part of the religious obligations of Muslims to preach theirreligion? A—Yes. Q.—Is it a part of the duty of Muslims in India publicly to preach theirreligion? A.—They should have that right.Q.—What if the Indian State is founded on a religious basis and the right to preach religion is disallowed to its Muslim nationals? A —If India makes any such law, believer in the Expansionist movement as I am, I will march on India and conquer her.”

So this is the reply to the reciprocity of discrimination on religious grounds.

Master Taj-ud-Din Ansari :—“Q.—Would you like to have the same ideology for the four crores of Muslims in India as you are impressing upon the Muslims of Pakistan? A.—That ideology will not let them remain in India for one minute. Q.—Does the ideology of a Muslim change from place to place and from time to time? A.—No. Q.—Then why should not the Muslims of India have the same ideology as you have? A.—They should answer that question.”

The ideology advocated before us, if adopted by Indian Muslims, will completely
disqualify them for public offices in the State, not only in India but in other countries also which are under a non-Muslim Government. Muslims will become perpetual suspects everywhere and will not be enrolled in the army because according to this ideology, in case of war between a Muslim country and a non-Muslim country, Muslim soldiers of the non-Muslim country must either side with the Muslim country or surrender their posts.

The following is the view expressed by two divines whom we questioned on this point:—

Maulana Abul Hasanat Sayyed Muhammad Ahmad Qadri, President, Jami’at-ul-
Ulama-i-Pakistan :—
“Q.—What will be the duty of Muslims in India in case of war between India
and Pakistan?
A.—Their duty is obvious, namely, to side with us and not to fight against us
on behalf of India.”

Maulana Abul Ala Maudoodi : —
“Q.—What will be the duty of the Muslims in India in case of war between
India and Pakistan?
A.—Their duty is obvious, and that is not to fight against Pakistan or to do
anything injurious to the safety of Pakistan.”

OTHER INCIDENTS

Other incidents of an Islamic State are that all sculpture, playing of cards, portrait
painting, photographing human beings, music, dancing, mixed acting, cinemas and
theatres will have to be closed.

“Q.—What are your views on tashbih and tamseel ?
A.—You should ask me a concrete question.
Q.—What are your views on lahw-o-la’b?
A.—The same is my reply to this question.
Q.—What are your views about portrait painting?
A.—There is nothing against it if any such painting becomes necessary.
Q.—What about photography?
A.—My reply to it is the same as the reply regarding portrait painting.
Q.—What about sculpture as an art?
A.—It is prohibited by our religion.
Q.—Will you bring playing of cards in lohw-o-la’b?
A.—Yes, it will amount to lahw-o-la’b.
Q.—What about music and dancing?
A.—It is all forbidden by our religion.
Q.—What about drama and acting?
A —It all depends on what kind of acting you mean. If it involves immodesty
and intermixture of sexes, the Islamic law is against it.
Q.—If the State is founded on your ideals, will you make a law stopping
portrait painting, photographing of human beings, sculpture, playing
of cards, music, dancing, acting and all cinemas and theatres?
A.—Keeping in view the present form of these activities, my answer is in the affirmative.”

Maulana Abdul Haamid Badayuni considers it to be a sin (ma’siyat) on the part of
professors of anatomy to dissect dead bodies of Muslims to explain points of anatomy to the students.

The soldier or the policeman will have the right, on grounds of religion, to disobey a command by a superior authority. Maulana Abul Hasanat’s view on this is as follows :—

“I believe that if a policeman is required to do something which we consider to be contrary to our religion, it should be the duty of the policeman to disobey the authority. The same would be my answer if ‘army’ were substituted for ‘police’.

Q.—You stated yesterday that if a policeman or a soldier was required by a
superior authority to do what you considered to be contrary to religion, it would be the duty of that policeman or the soldier to disobey such authority. Will you give the policeman or the soldier the right of himself determining whether the command he is given by his superior authority is contrary to religion ?
A.—Most certainly.
Q.—Suppose there is war between Pakistan and another Muslim country and the soldier feels that Pakistan is in the wrong; and that to shoot a soldier of other country is contrary to religion. Do you think he would be justified in disobeying his commanding officer ?
A.—In such a contingency the soldier should take a fatwa of the ‘ulama’.”

We have dwelt at some length on the subject of Islamic State not because we intended to write a thesis against or in favour of such State but merely with a view to presenting a clear picture of the numerous possibilities that may in future arise if true causes of the ideological confusion which contributed to the spread and intensity of the disturbances are not precisely located. That such confusion did exist is obvious because otherwise Muslim Leaguers, whose own Government was in office, would not have risen against it; sense of loyalty and public duty would not have departed from public officials who went about like maniacs howling against their own Government and officers; respect for property and human life would not have disappeared in the common man who with no scruple or compunction began freely to indulge in loot, arson and murder; politicians would not have shirked facing the men who had installed them in their offices; and administrators would not have felt hesitant or diffident in performing what was their obvious duty. If there is one thing which has been conclusively demonstrated in this inquiry, it is that provided you can persuade the masses to believe that something they are asked to do is religiously right or enjoined by religion, you can set them to any course of action, regardless of all considerations of discipline, loyalty, decency, morality or civic sense.

Pakistan is being taken by the common man, though it is not, as an Islamic State. This belief has been encouraged by the ceaseless clamour for Islam and Islamic State that is being heard from all quarters since the establishment of Pakistan. The phantom of an Islamic State has haunted the Musalman throughout the ages and is a result of the memory of the glorious past when Islam rising like a storm from the least expected quarter of the world—wilds of Arabia—instantly enveloped the world, pulling down from their high pedestal gods who had ruled over man since the creation, uprooting centuries old institutions and superstitions and supplanting all civilisations that had been built on an enslaved humanity. What is 125 years in human history, nay in the history of a people, and yet during this brief period Islam spread from the Indus to the Atlantic and Spain, and from the borders of China to Egypt, and the sons of the desert installed themselves in all old centres of civilisation—in Ctesiphon, Damascus, Alexandria, India and all places associated with the names of the Sumerian and the Assyrian civilisations. Historians have often posed the question : what would have been the state of the world today if Muawiya’s siege of Constantinople had succeeded or if the proverbial Arab instinct for plunder had not suddenly seized the mujahids of Abdur Rahman in their fight against Charles Martel on the plains of Tours in Southern France. May be Muslims would have discovered America long before Columbus did and the entire world would have been Moslemised; may be Islam itself would have been Europeanised. It is this brilliant achievement of the Arabian nomads, the like of which the world had never seen before, that makes the Musalman of today live in the past and yearn for the return of the glory that was Islam. He finds himself standing on the crossroads, wrapped in the mantle of the past and with the dead weight of centuries on his back, frustrated and bewildered and hesitant to turn one corner or the other. The freshness and the simplicity of the faith, which gave determination to his mind and spring to his muscle, is now denied to him. He has neither the means nor the ability to conquer and there are no countries to conquer. Little does he understand that the forces, which are pitted against him, are entirely different from those against which early Islam, had to fight, and that on the clues given by his own ancestors human mind has achieved results which he cannot understand. He therefore finds himself in a state of helplessness, waiting for some one to come and help him out of this morass of uncertainty and confusion. And he will go on waiting like this without anything happening. Nothing but a bold re-orientation of Islam to separate the vital from the lifeless can preserve it as a World Idea and convert the Musalman into a citizen of the present and the future world from the archaic in congruity that he is today. It is this lack of bold and clear thinking, the inability to understand and take decisions which has brought about in Pakistan a confusion which will persist and repeatedly create situations of the kind we have been inquiring into until our leaders have a clear conception of the goal and of the means to reach it. It requires no imagination to realise that irreconcilables remain irreconcilable even if you believe or wish to the contrary. Opposing principles, if left to themselves, can only produce confusion and disorder, and the application of a neutralising agency to them can only produce a dead result. Unless, in case of conflict between two ideologies, our leaders have the desire and the ability to elect, uncertainty must continue. And as long as we rely on the hammer when a file is needed and press Islam into service to solve situations it was never intended to solve, frustration and disappointment must dog our steps. The sublime faith called Islam will live even if our leaders are not there to enforce it. It lives in the individual, in his soul and outlook, in all his relations with God and men, from the cradle to the grave, and our politicians should understand that if Divine commands cannot make or keep a man a Musalman, their statutes will not….

From Facebook:

Subroto Roy recalls how, twenty years ago in Honolulu, he called his three-year old to the television to watch the fall of the Berlin Wall with him as a historic event — even while he had to battle as an individual against the most vicious tyranny unleashed against him by the Government of one of the fifty States (a battle that has continued).

P Chidambaram may recall our brief interaction at the residence of the late Shri Rajiv Gandhi in September-October 1990, and also my visit to you in July 1995 when you were a member of the late Shri Narasimha Rao’s Government.

This came to be followed by “Law, Justice and J&K”, “History of Jammu & Kashmir”, “Pakistan’s Allies”, “What to tell Musharraf” and a few others. The purpose of this open letter is to describe that solution which provides, I believe, the only just and lawful path available to the resolution of what has been known universally as the Kashmir problem.

Very briefly, it involves recognizing that the question of lawful territorial sovereignty in J&K is logically distinct from the question of the choice of nationality by individual inhabitants. The solution requires

(a) acknowledging that the original legal entity in the world system of nations known as Jammu & Kashmir arose on March 16 1846 and ceased to exist on or about October 22 1947; that the military contest that commenced on the latter date has in fact resulted, given all particular circumstances of history, in the lawful and just outcome in international law;

(b) offering all who may be Indian nationals or stateless and who presently live under Article 370, a formal choice of nationality between the Republics of India, Iran, Afghanistan and Pakistan: citizen-by-citizen, without fear or favour, under conditions of full information, individual privacy and security; any persons who voluntarily choose to renounce Indian nationality in such private individual decisions would be nevertheless granted lawful permanent residence in the Indian Republic and J&K in particular.

In other words, the dismemberment of the original J&K State and annexation of its territories by the entities known today as the Republic of Pakistan and Republic of India that occurred since October 22 1947, as represented first by the 1949 Ceasefire Line and then by the 1972 Line of Control, is indeed the just and lawful outcome prevailing in respect of the question of territorial sovereignty and jurisdiction. The remaining democratic question has to do with free individual choice of nationality by inhabitants, under conditions of full information and privacy, citizen-by-citizen, with the grant of permanent residency rights by the Indian Republic to persons under its jurisdiction in J&K who might wish to choose, for deeply personal individual reasons, not to remain Indian nationals but become Afghan, Iranian or Pakistani nationals instead (or remain stateless). Pakistan has said frequently its sole concern has been the freedom of Muslims of J&K under Indian rule, and any such genuine concern shall have been thereby fully met by India. Indeed if Pakistan agreed to act similarly this entire complex mortal problem of decades shall have begun to be resolved most appropriately. Pakistan and India are both wracked by corruption, poverty and bad governance, and would be able to mutually draw down military forces pit against one another everywhere, so as to begin to repair the grave damage to their fiscal health caused over decades by the deleterious draining away of vast public resources.

The full reasoning underlying this, which I believe to be the only lawful, just, efficient and stable solution that exists, is thoroughly explained in the following six articles. The first five, “Solving Kashmir”, “Law, Justice & J&K”, “History of J&K”, and “Pakistan’s Allies”, “What to Tell Musharraf” were published in The Statesman in 2005-2006 and are marked ONE, TWO, THREE, FOUR and FIVE below, and are also available elsewhere here. The sixth “An Indian Reply to President Zardari”, marked SIX, was published for the first time here following the Mumbai massacres.

I believe careful reflection upon this entire body of reasoning may lead all reasonable men and women to a practically unanimous consensus about this as the appropriate course of action; if such a consensus happened to arise, the implementation of the solution shall only be a matter of (relatively) uncomplicated procedural detail.

Subroto Roy
October 15 2009

(This article has its origins in a paper “Towards an Economic Solution for Kashmir” which circulated in Washington DC in 1992-1995, including at the Indian and Pakistani embassies and the Carnegie Endowment, and was given as an invited lecture at the Heritage Foundation on June 23 1998. It should be read along with other articles also republished here, especially “History of J&K”, “Law, Justice and J&K” , “Understanding Pakistan”, “Pakistan’s Allies” and “What to Tell Musharraf”. The Washington paper and lecture itself originated from my ideas in the Introduction to Foundations of Pakistan’s Political Economy, edited by WE James and myself in the University of Hawaii project on Pakistan 1986-1992.)

I. Give Indian `Green Cards’ to the Hurriyat et al

India, being a liberal democracy in its constitutional law, cannot do in Jammu & Kashmir what Czechoslovakia did to the “Sudeten Germans” after World War II. On June 18 1945 the new Czechoslovakia announced those Germans and Magyars within their borders who could not prove they had been actively anti-fascist before or during the War would be expelled — the burden of proof was placed on the individual, not the State. Czechoslovakia “transferring” this population was approved by the Heads of the USA, UK and USSR Governments at Potsdam on August 2 1945. By the end of 1946, upto two million Sudeten Germans were forced to flee their homes; thousands may have died by massacre or otherwise; 165,000 remained who were absorbed as Czechoslovak citizens. Among those expelled were doubtless many who had supported Germany and many others who had not — the latter to this day seek justice or even an apology in vain. Czechoslovakia punished none of its nationals for atrocities, saying it had been revenge for Hitler’s evil (”badla” in Bollywood terms) and the post Cold War Czech Government too has declined to render an apology. Revenge is a wild kind of justice (while justice may be a civilised kind of revenge).

India cannot follow this savage precedent in international law. Yet we must recognise there are several hundred and up to several hundred thousand persons on our side of the boundary in the State of Jammu & Kashmir who do not wish to be Indian nationals. These people are presently our nationals ius soli, having been born in territory of the Indian Republic, and/or ius sanguinis, having been born of parents who are Indian nationals; or they may be “stateless” whom we must treat in accordance with the 1954 Convention on Stateless Persons. The fact is they may not wish to carry Indian passports or be Indian nationals.

In this respect their juridical persons resemble the few million “elite” Indians who have in the last few decades freely placed their hands on their hearts and solemnly renounced their Indian nationality, declaring instead their individual fidelity to other nation-states — becoming American, Canadian or Australian citizens, or British subjects or nationals of other countries. Such people include tens of thousands of the adult children of India’s metropolitan “elite”, who are annually visited abroad in the hot summer months by their Indian parents and relatives. They are daughters and sons of New Delhi’s Government and Opposition, of retired generals, air marshals, admirals, ambassadors, cabinet secretaries, public sector bureaucrats, private sector businessmen, university professors, journalists, doctors and many others. India’s most popular film-actress exemplified this “elite” capital-flight when, after a tireless search, she chose a foreign husband and moved to California.

The difference in Jammu & Kashmir would be that those wishing to renounce Indian nationality do not wish to move to any other place but to stay as and where they are, which is in Kashmir Valley or Jammu. Furthermore, they may wish, for whatever reason, to adopt, if they are eligible to do so, the nationality of e.g. the Islamic Republic of Afghanistan or the Islamic Republic of Iran or the Islamic Republic of Pakistan.

They may believe themselves descended from Ahmad Shah Abdali whose Afghans ruled or mis-ruled Kashmir Valley before being defeated by Ranjit Singh’s Sikhs in 1819. Or they may believe themselves of Iranian descent as, for example, are the Kashmiri cousins of the late Ayatollah Khomeini. Or they may simply have wished to be, or are descended from persons who had wished to be on October 26 1947, citizens of the then-new British Dominion of Pakistan — but who came to be prevented from properly expressing such a desire because of the war-like conditions that have prevailed ever since between India and Pakistan. There may be even a few persons in Laddakh who are today Indian nationals but who wish to be considered Tibetans instead; there is, however, no Tibetan Republic and it does not appear there is going to be one.

India, being a free and self-confident country, should allow, in a systematic lawful manner, all such persons to fulfil their desires, and furthermore, should ensure they are not penalised for having expressed such “anti-national” desires or for having acted upon them. Sir Mark Tully, the British journalist, is an example of someone who has been a foreign national who has chosen to reside permanently in the Republic of India — indeed he has been an exemplary permanent resident of our country. There are many others like him. There is no logical reason why all those persons in Jammu & Kashmir who do wish not to be Indians by nationality cannot receive the same legal status from the Indian Republic as has been granted to Sir Mark Tully. There are already thousands of Sri Lankan, Bangladeshi and Nepalese nationals who are lawful permanent residents in the Indian Republic, and who travel back and forth between India and their home countries. There is no logical reason why the same could not be extended to several hundred or numerous thousand people in Jammu & Kashmir who may wish to not accept or to renounce their Indian nationality (for whatever personal reason) and instead become nationals, if they are so eligible, of the Islamic Republics of Afghanistan, Iran or Pakistan, or, for that matter, to remain stateless. On the one hand, their renunciation of Indian nationality is logically equivalent to the renunciation of Indian nationality by the adult children of India’s “elite” settled in North America and Western Europe. On the other hand, their wish to adopt, if they are eligible, a foreign nationality, such as that of Afghanistan, Iran or Pakistan, and yet remain domiciled in Indian territory is logically equivalent to that of many foreign nationals domiciled in India already like Sir Mark Tully.

Now if you are a permanent resident of some country, you may legally have many, perhaps most, but certainly not all the rights and duties of nationals of that country. e.g., though you will have to pay all the same taxes, you may not be allowed to (or be required to) vote in national or provincial elections but you may in local municipal elections. At the same time, permanently residing foreign nationals are supposed to be equal under the law and have equal access to all processes of civil and criminal justice. (As may be expected though from human frailty, even the federal courts of the USA can be notorious in their injustice and racism towards “Green Card” holders relative to “full” American citizens.) Then again, as a permanently resident foreigner, while you will be free to work in any lawful trade or profession, you may not be allowed to work in some or perhaps any Government agencies, certainly not the armed forces or the police. Many Indians in the USA were engineering graduates, and because many engineering jobs or contracts in the USA are related to the US armed forces and require US citizens only, it is commonplace for Indian engineers to renounce their Indian nationality and become Americans because of this. Many Indian-American families have one member who is American, another Indian, a third maybe Canadian, a fourth Fijian or British etc.

The same can happen in the Indian State of Jammu & Kashmir if it evolves peacefully and correctly in the future. It is quite possible to imagine a productive family in a peaceful Kashmir Valley of the future where one brother is an officer in the Indian Armed Forces, another brother a civil servant and a sister a police officer of the J&K State Government, another sister being a Pakistani doctor, while cousins are Afghan or Iranian or “stateless” businessmen. Each family-member would have made his/her choice of nationality as an individual given the circumstances of his/her life, his/her personal comprehension of the facts of history, his/her personal political and/or religious persuasions, and similar deeply private considerations. All would have their children going to Indian schools and being Indian citizens ius soli and/or ius sanguinis. When the children grow up, they would be free to join, if they wished, the existing capital flight of other Indian adult children abroad and there renounce their Indian nationality as many have come to do.

II Revealing Choices Privately with Full Information
For India to implement such a proposal would be to provide an opportunity for all those domiciled in Kashmir Valley, Jammu and Laddakh to express freely and privately as individuals their deepest wishes about their own identities, in a confidential manner, citizen by citizen, case by case. This would thereby solve the fundamental democratic problem that has been faced ever since the Pakistani attack on the original State of Jammu & Kashmir commenced on October 22 1947, which came to be followed by the Rape of Baramulla — causing the formal accession of the State to the then-new Dominion of India on October 26 1947.

A period of, say, 30 months may be announced by the Government of India during which full information would be provided to all citizens affected by this change, i.e. all those presently governed by Article 370 of the Indian Constitution. The condition of full information may include, for example, easy access to Afghan, Iranian and Pakistani newspapers in addition to access to Indian media. Each such person wishing to either remain with Indian nationality (by explicitly requesting an Indian passport if he/she does not have one already — and such passports can be printed in Kashmiri and Urdu too), or to renounce Indian nationality and either remain stateless or adopt, if he/she is so eligible, the nationality of e.g. Afghanistan, Iran, or Pakistan, should be administratively assisted by the Government of India to make that choice.

In particular, he/she should be individually, confidentially, and without fear or favour assured and informed of his/her new rights and responsibilities. For example, a resident of Kashmir Valley who chooses to become a Pakistani citizen, such as Mr Geelani, would now enjoy the same rights and responsibilities in the Indian Republic that Mr Tully enjoys, and at the same time no longer require a visa to visit Pakistan just as Mr Tully needs no visa to enter Britain. In case individual participants in the Hurriyat choose to renounce Indian nationality and adopt some other, they would no longer be able to legally participate in Indian national elections or J&K’s State elections. That is something which they say they do not wish to do in any case. Those members of the Hurriyat who chose e.g. Pakistani nationality while still residing in Jammu & Kashmir, would be free to send postal ballots or cross the border and vote in Pakistan’s elections if and when these occur. There are many Canadians who live permanently in the USA who cross home to Canada in order to cast a ballot.

After the period of 30 months, every person presently under Article 370 of the Indian Constitution would have received a full and fair opportunity to privately and confidentially reveal his/her preference or choice under conditions of full information. “Partition”, “Plebiscite”, and “Military Decision” have been the three alternatives under discussion ever since the National Conference of Sheikh Mohammad Abdullah and his then-loyal Deputy, Bakshi Ghulam Mohammad, helped the Indian Army and Air Force in 1947-1948 fight off the savage attack against Jammu & Kashmir State that had commenced from Pakistan on October 22 1947. When, during the Pakistani attack, the Sheikh and Bakshi agreed to the Muslim Conference’s demand for a plebiscite among the people, the Pakistanis balked — the Sheikh and Bakshi then withdrew their offer and decisively and irrevocably chose to accede to the Indian Union. The people of Jammu & Kashmir, like any other, are now bound by the sovereign political commitments made by their forebears. Even so, given the painful mortal facts of the several decades since, the solution here proposed if properly implemented would be an incomparably more thorough democratic exercise than any conceivable plebiscite could ever have been.

Furthermore, regardless of the outcome, it would not entail any further “Partition” or population “transfer” which inevitably would degenerate into a savage balkanization, and has been ruled out as an unacceptable “deal-breaker” by the Indian Republic. Instead, every individual person would have been required, in a private and confidential decision-making process, to have chosen a nationality or to remain stateless — resulting in a multitude of cosmopolitan families in Jammu & Kashmir. But that is something commonplace in the modern world. Properly understood and properly implemented, we shall have resolved the great mortal problem we have faced for more than half a century, and Jammu & Kashmir can finally settle into a period of peace and prosperity. The boundary between India and Pakistan would have been settled by the third alternative mentioned at the time, namely, “Military Decision”.

III. Of Flags and Consulates in Srinagar and Gilgit
Pakistan has demanded its flag fly in Srinagar. This too can happen though not in the way Pakistan has been wishing to see it happen. A Pakistan flag might fly in the Valley just as might an Afghan and Iranian flag as well. Pakistan has wished its flag to fly as the sovereign over Jammu & Kashmir. That is not possible. The best and most just outcome is for the Pakistani flag to fly over a recognised Pakistani consular or visa office in Srinagar, Jammu and Leh. In diplomatic exchange, the Indian tricolour would have to fly over a recognised Indian consular or visa office in Muzaffarabad, Gilgit and Skardu.

Pakistan also may have to act equivalently with respect to the original inhabitants of the territory of Jammu & Kashmir that it has been controlling — allowing those people to become Indian nationals if they so chose to do in free private decisions under conditions of full information. In other words, the “Military Decision” that defines the present boundary between sovereign states must be recognised by Pakistan sincerely and permanently in a Treaty relationship with India — and all of Pakistan’s official and unofficial protégés like the Hurriyat and the “United Jehad Council” would have to do the same. Without such a sovereign commitment from the Government of Pakistan, as shown by decisive actions of lack of aggressive intent (e.g. as came to be implemented between the USA and USSR), the Government of India has no need to involve the Government of Pakistan in implementing the solution of enhancing free individual choice of nationality with regard to all persons on our side of the boundary.

The “Military Decision” regarding the sovereign boundary in Jammu & Kashmir will be so recognised by all only if it is the universally just outcome in international law. And that in fact is what it is.

The original Jammu & Kashmir State began its existence as an entity in international law long before the present Republics of India and Pakistan ever did. Pakistan commences as an entity on August 14 1947; India commences as an entity of international law with its signing of the Treaty of Versailles on June 20 1918. Jammu & Kashmir began as an entity on March 16 1846 — when the Treaty of Amritsar was signed between Gulab Singh Dogra and the British, one week after the Treaty of Lahore between the British and the defeated Sikh regency of the child Daleep Singh.

Liaquat Ali Khan and Zafrullah Khan both formally challenged on Pakistan’s behalf the legitimacy of Dogra rule in Jammu & Kashmir since the Treaty of Amritsar. The Pakistani Mission to the UN does so even today. The Pakistanis were following Sheikh Abdullah and Jawaharlal Nehru himself, who too had at one point challenged Dogra legitimacy in the past. But though the form of words of the Pakistan Government and the Nehru-Abdullah position were similar in their attacks on the Treaty of Amritsar, their underlying substantive reasons were as different as chalk from cheese. The Pakistanis attacked the Dogra dynasty for being Dogra — i.e. because they were Hindus and not Muslims governing a Muslim majority. Nehru and Abdullah denounced monarchic autocracy in favour of mass democracy, and so attacked the Dogra dynasty for being a dynasty. All were wrong to think the Treaty of Amritsar anything but a lawful treaty in international law.

Furthermore, in this sombre political game of great mortal consequence, there were also two other parties who were, or appeared to be, in favour of the dynasty: one because the dynasty was non-Muslim, the other, despite it being so. Non-Muslim minorities like many Hindus and Sikhs in the business and governmental classes, saw the Dogra dynasty as their protector against a feared communalist tyranny arising from the Sunni Muslim masses of Srinagar Valley, whom Abdullah’s rhetoric at Friday prayer-meetings had been inciting or at least awakening from slumber. At the same time, the communalists of the Muslim Conference who had broken away from Abdullah’s secular National Conference, sought political advantage over Abdullah by declaring themselves in favour of keeping the dynasty — even elevating it to become an international sovereign, thus flattering the already pretentious potentate that he would be called “His Majesty” instead of merely “His Highness”. The ancestry of today’s Hurriyat’s demands for an independent Jammu & Kashmir may be traced precisely to those May 21-22 1947 declarations of the Muslim Conference leader, Hamidullah Khan.

Into this game stumbled the British with all the mix of cunning, indifference, good will, impatience, arrogance and pomposity that marked their rule in India. At the behest of the so-called “Native Princes”, the 1929 Butler Commission had hinted that the relationship of “Indian India” to the British sovereign was conceptually different from that of “British India” to the British sovereign. This view was adopted in the Cabinet Mission’s 12 May 1946 Memorandum which in turn came to be applied by Attlee and Mountbatten in their unseemly rush to “Divide and Quit” India in the summer of 1947.

It created the pure legal illusion that there was such a thing as “Lapse of Paramountcy” at which Jammu & Kashmir or any other “Native State” of “Indian India” could conceivably, even for a moment, become a sovereign enjoying the comity of nations — contradicting Britain’s own position that only two Dominions, India and Pakistan, could ever be members of the British Commonwealth and hence members of the newly created UN. British pusillanimity towards Jammu & Kashmir’s Ruler had even extended to making him a nominal member of Churchill’s War Cabinet because he had sent troops to fight in Burma. But the legal illusion had come about because of a catastrophic misunderstanding on the part of the British of their own constitutional law.

The only legal scholar who saw this was B R Ambedkar in a lonely and brilliant technical analysis released to the press on June 17 1947. No “Lapse of Paramountcy” over the “Native Princes” of Indian India could occur in constitutional law. Paramountcy over Indian India would be automatically inherited by the successor state of British India at the Transfer of Power. That successor state was the new British Dominion of India as well as (when it came to be finalised by Partition from India) the new British Dominion of Pakistan (Postscript: the deleted words represent a mistake made in the original paper, corrected in “Law, Justice & J&K” in view of the fact the UN in 1947 deemed India alone the successor state of British India and Pakistan a new state in the world system). A former “Native Prince” could only choose to which Dominion he would go. No other alternative existed even for a single logical moment. Because the British had catastrophically failed to comprehend this aspect of their own constitutional law, they created a legal vacuum whereby between August 15 and October 22-26 1947, Jammu & Kashmir became a local and temporary sovereign recognised only by the Dominion of Pakistan (until October 22) and the Dominion of India (until October 26). But it was not a globally recognised sovereign and was never going to be such in international law. This was further proved by Attlee refusing to answer the J&K Prime Minister’s October 18 1947 telegram.

All ambiguity came to end with the Pakistani attack of October 22 1947, the Rape of Baramulla, the secession of an “Azad Kashmir”declared by Sardar Ibrahim, and the Pakistani coup détat in Gilgit on October 31 1947 followed by the massacre of Sikh soldiers of the J&K Army at Bunji. With those Pakistani actions, Gulab Singh’s Jammu & Kashmir State, founded on March 16 1846 by the Treaty of Amritsar, ceased to logically exist as an entity in international law and fell into a state of ownerless anarchy. The conflict between Ibrahim’s Muslim communalists backed by the new Dominion of Pakistan and Abdullah’s secularists backed by the new Dominion of India had become a civil war within a larger intra-Commonwealth war that itself was almost a civil war between forces of the same military.

Jammu & Kashmir territory had become ownerless. The Roman Law which is at the root of all municipal and international law in the world today would declare that in the ownership of such an ownerless entity, a “Military Decision” was indeed the just outcome. Sovereignty over the land, waters, forests and other actual and potential resources of the erstwhile State of Jammu & Kashmir has become divided by “Military Decision” between the modern Republics of India and Pakistan. By the proposal made herein, the people and their descendants shall have chosen their nationality and their domicile freely across the sovereign boundary that has come to result.

I.
For a solution to J&K to be universally acceptable it must be seen by all as being lawful and just. Political opinion in Pakistan and India as well as all people and parties in J&K ~ those loyal to India, those loyal to Pakistan, and any others ~ will have to agree that, all things considered, such is the right course of action for everyone today in the 21st Century, which means too that the solution must be consistent with the facts of history as well as account reasonably for all moral considerations.

On August 14, 1947, the legal entity known as “British India”, as one of its final acts, and based on a sovereign British decision made only two months earlier, created out of some of its territory a new State defined in international law as the “Dominion of Pakistan”. British India extinguished itself the very next day, and the newly independent “Dominion of India” succeeded to all its rights and obligations in international law. As the legal successor of the “India” which had signed the Treaty of Versailles in 1919 and the San Francisco Declaration of 1945, the Dominion of India was already a member of the new UN as well as a signatory to many international treaties. By contrast, the Dominion of Pakistan had to apply afresh to sign treaties and become a member of international organisations. The theory put forward by Argentina that two new States, India and Pakistan, had been created ab initio, came to be rejected and was withdrawn by Argentina. Instead, Pakistan with the wholehearted backing of India was made a member of the UN, with all except Afghanistan voting in favour. (Afghanistan’s exceptional vote signalled presence of conflict over the Durand Line and idea of a Pashtunistan; Dr Khan Sahib and Abdul Ghaffar Khan were imprisoned by the Muslim League regime of NWFP which later supported the tribesmen who attacked J&K starting October 22, 1947; that conflict remains unresolved to this day, even after the American attack on the Taliban, the restart of a constitutional process in Afghanistan, and the purported mediation of US Secretary of State Condoleeza Rice.)

Zafrullah Khan, Pakistan’s distinguished first ambassador to the UN, claimed in September 1947: “Pakistan is not a new member of UNO but a successor to a member State which was one of the founders of the Organisation.” He noted that he himself had led India to the final session of the League of Nations in Geneva in 1939, and he wished to say that Pakistan had been present “as part of India… under the latter name” as a signatory to the Treaty of Versailles. This was, however, logically impossible. The Treaty of Versailles long predated (1) Mohammad Iqbal’s Allahabad Address which conceptualised for the first time in the 20th Century a Muslim State in Northwest India; (2) Rahmat Ali’s invention of the word “PAKSTAN” on the top floor of a London omnibus; (3) M. A. Jinnah and Fazlul Haq’s Lahore Resolution; and (4) the final British decision of June 3, 1947 to create by Partition out of “British India” a Dominion named Pakistan. Pakistan could not have acted in international law prior to having come into being or been created or even conceived itself. Zafrullah Khan would have been more accurate to say that the history of Pakistanis until August 14, 1947 had been one in common with that of their Indian cousins ~ or indeed their Indian brothers, since innumerable North Indian Muslim families came to be literally partitioned, with some brothers remaining Indians while other brothers became Pakistanis.

Pakistan was created at the behest of Jinnah’s Muslim League though with eventual agreement of the Indian National Congress (a distant ancestor of the political party going by the same name today). Pakistan arose not because Jinnah said Hindus and Muslims were “two nations” but because he and his League wished for a State where Muslims would find themselves ruled by fellow-Muslims and feel themselves part of a pan-Islamic culture. Yet Pakistan was intended to be a secular polity with Muslim-majority governance, not an Islamic theocracy. That Pakistan failed to become secular was exemplified most poignantly in the persecution Zafrullah himself later faced in his personal life as an Ahmadiya, even while he was Pakistan’s Foreign Minister. (The same happened later to Pakistan’s Nobel-winning physicist Abdus Salaam.) Pakistan was supposed to allow the genius of Indo-Muslim culture to flourish, transplanted from places like Lucknow and Aligarh which would never be part of it. In fact, the areas that are Pakistan today had in the 1937 provincial elections shown scant popular Muslim support for Jinnah’s League. The NWFP had a Congress Government in the 1946 elections, and its supporters boycotted the pro-Pakistan referendum in 1947. The imposition of Urdu culture as Pakistan’s dominant ethos might have come to be accepted later in West Punjab, Sindh and NWFP but it was not acceptable in East Bengal, and led inevitably to the Pakistani civil war and creation of Bangladesh by Sheikh Mujib in 1971.

In August 1947, the new Dominions of India and Pakistan were each supposed to protect their respective minority populations as their first political duty. Yet both palpably failed in this, and were reduced to making joint declarations pleading for peace and an end to communal killings and the abduction of women. The Karachi Government, lacking the wherewithal and administrative machinery of being a nation-state at all, and with only Liaquat and an ailing Jinnah as noted leaders, may have failed more conspicuously, and West Punjab, the Frontier and Sindh were soon emptied of almost all their many Sikhs and Hindus. Instead, the first act of the new Pakistan Government in the weeks after August 14, 1947 was to arrange for the speedy and safe transfer of the North Indian Muslim elite by air from Delhi using chartered British aeroplanes. The ordinary Muslim masses of UP, Delhi and East Punjab were left in danger from or were subjected to Sikh and Hindu mob attacks, especially as news and rumours spread of similar outrages against Pakistan’s departing minorities.

In this spiral of revenge attacks and counter-attacks, bloodshed inevitably spilled over from West and East Punjab into the northern Punjabi plains of Jammu, though Kashmir Valley remained conspicuously peaceful. Zafrullah and Liaquat would later claim it was this communal civil war which had caused thousands of newly decommissioned Mirpuri soldiers of the British Army, and thousands of Afridi and other Frontier tribesmen, to spontaneously act to “liberate” J&K’s Muslims from alleged tyranny under the Hindu Ruler or an allegedly illegal Indian occupation.

But the main attack on J&K State that began from Pakistan along the Manshera-Muzaffarabad road on October 22, 1947 was admittedly far too well-organised, well-armed, well-planned and well-executed to have been merely a spontaneous uprising of tribesmen and former soldiers. In all but name, it was an act of undeclared war of the new Dominion of Pakistan first upon the State of J&K and then upon the Indian Dominion. This became obvious to Field Marshall Auchinlek, who, as Supreme Commander of the armed forces of both India and Pakistan, promptly resigned and abolished the Supreme Command in face of the fact that two parts of his own forces were now at war with one another.

The invaders failed to take Srinagar solely because they lost their military purpose while indulging in the Rape of Baramula. Thousands of Kashmiri women of all communities ~ Muslim, Sikh and Hindu ~ were violated and transported back to be sold in markets in Peshawar and elsewhere. Such was standard practice in Central Asian tribal wars from long before the advent of Islam, and the invading tribesmen shared that culture. India’s Army and Air Force along with the militias of the secular democratic movement led by Sheikh Abdullah and those remaining loyal units of J&K forces, fought off the invasion, and liberated Baramula, Naushera, Uri, Poonch etc. Gilgit had a British-led coup détat against it bringing it under Pakistan’s control. Kargil was initially taken by the Pakistanis and then lost by them. Leh could have been but was not taken by Pakistani forces. But in seeking to protect Leh and to retake Kargil, the Indian Army lost the siege of Skardu ~ which ended reputedly with the infamous communication from the Pakistani commander to his HQ: “All Sikhs killed; all women raped.”

Legal theory
Now, in this grave mortal conflict, the legal theory to which both the Indian and Pakistani Governments have been wedded for sixty years is one that had been endorsed by the British Cabinet Mission in 1946 and originated with the Butler Commission of 1929. Namely, that “Lapse of Paramountcy” over the “Indian India” of the “Native States” could and did occur with the extinction of British India on August 15, 1947. By this theory, Hyderabad, J&K, Junagadh and the several other States which had not acceded to either Dominion were no longer subject to the Crown’s suzerainty as of that date. Both Dominions drew up “Instruments of Accession” for Rulers to sign upon the supposed “Lapse” of Paramountcy that was to occur with the end of British India.

Ever since, the Pakistan Government has argued that Junagadh’s Ruler acceded to Pakistan and Hyderabad’s had wished to do so but both were forcibly prevented by India. Pakistan has also argued the accession to India by J&K’s Ruler was “fraudulent” and unacceptable, and Sheikh Abdullah was a “Quisling” of India and it was not his National Conference but the Muslim Conference of Ibrahim, Abbas and the Mirwaiz (precursor of the Hurriyat) which represented J&K’s Muslims.

India argued that Junagadh’s accession to Pakistan or Hyderabad’s independence were legal and practical impossibilities contradicting the wills of their peoples, and that their integration into the Indian Dominion was carried out in an entirely legitimate manner in the circumstances prevailing.

On J&K, India has argued that not only had the Ruler requested Indian forces to fight off the Pakistani attack, and he acceded formally before Indian forces were sent, but also that democratic principles were fully adhered to in the unequivocal endorsement of the accession by Sheikh Abdullah and the National Conference and further by a duly called and elected J&K Constituent Assembly, as well as generations of Kashmiris since. In the Indian view, it is Pakistan which has been in illegal occupation of Indian territory from Mirpur, Muzaffarabad and Gilgit to Skardu all the way to the Khunjerab Pass, Siachen Glacier and K2, some of which it illegally ceded to its Communist Chinese ally, and furthermore that it has denied the peoples of these areas any democratic voice.

Roman law
In June 1947, it was uniquely and brilliantly argued by BR Ambedkar in a statement to the Press that the British had made a catastrophic error in comprehending their own constitutional law, that no such thing as “Lapse” of Paramountcy existed, and that suzerainty over the “Native States” of “Indian India” would be automatically transferred in international law to the successor State of British India. It was a legal illusion to think any Native State could be sovereign even for a single logical moment. On this theory, if the Dominion of India was the sole successor State in international law while Pakistan was a new legal entity, then a Native State which acceded to Pakistan after August 15, 1947 would have had to do so with the consent of the suzerain power, namely, India, as may be said to have happened implicitly in case of Chitral and a few others. Equally, India’s behaviour in integrating (or annexing) Junagadh and Hyderabad, would become fully explicable ~ as would the statements of Mountbatten, Nehru and Patel before October 1947 that they would accept J&K going to Pakistan if that was what the Ruler and his people desired. Pakistan unilaterally and by surprise went to war against J&K on October 22, declared the accession to India “fraudulent”, and to this day has claimed the territory of the original State of J&K is “disputed”. Certainly, even if the Ambedkar doctrine is applied that no “Lapse” was possible under British law, Pakistan did not recognise India’s jurisdiction there as the suzerain power as of August 15, 1947. Altogether, Pakistan’s sovereign actions from October 22 onwards amounted to acting to annex J&K to itself by military force ~ acts which came to be militarily resisted (with partial success) by India allied with Sheikh Abdullah’s National Conference and the remaining forces of J&K. By these military actions, Pakistan revealed that it considered J&K territory to have descended into a legal state of anarchy as of October 22, 1947, and hence open to resolution by “Military Decision” ~ as is indeed the just outcome under Roman Law, the root of all municipal and international law today, when there is a contest between claimants over an ownerless entity.

Choice of nationality
Hence, the present author concluded (“Solving Kashmir”, The Statesman December 1-3, 2005) that the dismemberment of the original J&K State and annexation of its territories by India and Pakistan that has occurred since 1947, as represented first by the 1949 Ceasefire Line and then by the 1972 Line of Control, is indeed the just and lawful outcome prevailing in respect of the question of territorial sovereignty and jurisdiction. The remaining “democratic” question described has to do with free individual choice of nationality by the inhabitants, under conditions of full information and privacy, citizen-by-citizen, with the grant of permanent residency rights by the Indian Republic to persons under its jurisdiction in J&K who may choose not to remain Indian nationals but become Afghan, Iranian or Pakistani nationals instead. Pakistan has said frequently its sole concern has been the freedom of the Muslims of J&K under Indian rule, and any such genuine concern shall have been thereby fully met by India. Indeed, if Pakistan agreed to act similarly, this entire complex mortal problem of decades shall have begun to be peacefully resolved. Both countries are wracked by corruption, poverty and bad governance, and would be able to mutually draw down military forces pit against one another everywhere, so as to begin to repair the grave damage to their fiscal health caused by the deleterious draining away of vast public resources.

At the advent of Islam in distant Arabia, India and Kashmir in particular were being visited by Chinese Buddhist pilgrims during Harsha’s reign. The great “Master of Law” Hiuen Tsiang visited between 629-645 and spent 631-633 in Kashmir (”Kia-chi-mi-lo”), describing it to include Punjab, Kabul and Kandahar. Over the next dozen centuries, Buddhist, Hindu, Muslim, Sikh and again Hindu monarchs came to rule the 85 mile long 40 mile wide territory on the River Jhelum’s upper course known as Srinagar Valley, as well as its adjoining Jammu in the upper plains of the Punjab and “Little Tibet” consisting of Laddakh, Baltistan and Gilgit.

In 1344, a Persian adventurer from Swat or Khorasan by name of Amir or Mirza, who had “found his way into the Valley and in time gained great influence at the Raja’s court”, proclaimed himself Sultan Shamsuddin after the death of the last Hindu monarchs of medieval Kashmir. Twelve of his descendants formed the Shamiri dynasty including the notorious Sikander and the just and tolerant Zainulabidin. Sikander who ruled 1386-1410 “submitted himself” to the Uzbek Taimur the Lame when he approached Kashmir in 1398 “and thus saved the country from invasion”. Otherwise, “Sikander was a gloomy ferocious bigot, and his zeal in destroying temples and idols was so intense that he is remembered as the Idol-Breaker. He freely used the sword to propagate Islam and succeeded in forcing the bulk of the population to conform outwardly to the Muslim religion. Most of the Brahmins refused to apostatise, and many of them paid with their lives the penalty for their steadfastness. Many others were exiled, and only a few conformed.”

Zainulabidin who ruled 1417-1467 “was a man of very different type”. “He adopted the policy of universal toleration, recalled the exiled Brahmins, repealed the jizya or poll-tax on Hindus, and even permitted new temples to be built. He abstained from eating flesh, prohibited the slaughter of kine, and was justly venerated as a saint. He encouraged literature, painting and music, and caused many translations to be made of works composed in Sanskrit, Arabic and other languages.” During his “long and prosperous reign”, he “constructed canals and built many mosques; he was just and tolerant”.

The Shamiri dynasty ended in 1541 when “some fugitive chiefs of the two local factions of the Makri and the Chakk invited Mirza Haidar Dughlat, a relation of Babar, to invade Kashmir. The country was conquered and the Mirza held it (nominally in name of Humayan) till 1551, when he was killed in a skirmish. The line… was restored for a few years, until in 1559 a Chakk leader, Ghazi Shah, usurped the throne; and in the possession of his descendants it remained for nearly thirty years.” This dynasty marks the origins of Shia Islam in Srinagar though Shia influence in Gilgit, Baltistan and Laddakh was of longer standing. Constant dissensions weakened the Chakks, and in 1586, Akbar, then at Attock on the Indus, sent an army under Raja Bhagwan Das into Srinagar Valley and easily made it part of his Empire.

Shivaism and Islam both flourished, and Hindu ascetics and Sufi saints were revered by all. Far from Muslims and Hindus forming distinct nations, here they were genetically related kinsmen living in proximity in a small isolated area for centuries. Indeed Zainulabidin may have had a vast unspoken influence on the history of all India insofar as Akbar sought to attempt in his empire what Zainulabidin achieved in the Valley. Like Zainulabidin, Akbar’s governance of India had as its “constant aim” “to conciliate the Hindus and to repress Muslim bigotry” which in modern political parlance may be seen as the principle of secular governance ~ of conciliating the powerless (whether majority or minority) and repressing the bigotry of the powerful (whether minority or majority). Akbar had made the Valley the summer residence of the Mughals, and it was Jahangir, seeing the Valley for the first time, who apparently said the words agar behest baushad, hamee in hast, hamee in hast, hamee in hast: “if Heaven exists, it is here, it is here, it is here”. Yet like other isolated paradises (such as the idyllic islands of the Pacific Ocean) an accursed mental ether can accompany the magnificent beauty of people’s surroundings. As the historian put it: “The Kashmiris remained secure in their inaccessible Valley; but they were given up to internal weakness and discord, their political importance was gone…”

After the Mughals collapsed, Iran’s Turkish ruler Nadir Shah sacked Delhi in 1739 but the Iranian court fell in disarray upon his death. In 1747 a jirga of Pashtun tribes at Kandahar “broke normal tradition” and asked an old Punjabi holy man and shrine-keeper to choose between two leaders; this man placed young wheat in the hand of the 25 year old Ahmed Shah Saddozai of the Abdali tribe, and titled him “Durrani”. Five years later, Durrani took Kashmir and for the next 67 years the Valley was under Pashtun rule, a time of “unmitigated brutality and widespread distress”. Durrani himself “was wise, prudent and simple”, never declared himself king and wore no crown, instead keeping a stick of young wheat in his turban. Leaving India, he famously recited: “The Delhi throne is beautiful indeed, but does it compare with the mountains of Kandahar?”

Kashmir’s modern history begins with Ranjit Singh of the Sikhs who became a soldier at 12, and in 1799 at age 19 was made Lahore’s Governor by Kabul’s Zaman Shah. Three years later “he made himself master of Amritsar”, and in 1806 crossed the River Sutlej and took Ludhiana. He created a fine Sikh infantry and cavalry under former officers of Napoleon, and with 80,000 trained men and 500 guns took Multan and Peshawar, defeated the Pashtuns and overran Kashmir in 1819. The “cruel rule” of the Pashtuns ended “to the great relief of Kashmir’s inhabitants”.

The British Governor-General Minto (ancestor of the later Viceroy), seeing advantage in the Sikhs staying north of the Sutlej, sent Charles Metcalfe, “a clever young civilian”, to persuade the Khalsa; in 1809, Ranjit Singh and the British in the first Treaty of Amritsar agreed to establish “perpetual amity”: the British would “have no concern” north of the Sutlej and Ranjit Singh would keep only minor personnel south of it. In 1834 and 1838 Ranjit Singh was struck by paralysis and died in 1839, leaving no competent heir. The Sikh polity collapsed, “their power exploded, disappearing in fierce but fast flames”. It was “a period of storm and anarchy in which assassination was the rule” and the legitimate line of his son and grandson, Kharak Singh and Nao Nihal Singh was quickly extinguished. In 1845 the Queen Regent, mother of the five-year old Dalip Singh, agreed to the Khalsa ending the 1809 Treaty. After bitter battles that might have gone either way, the Khalsa lost at Sobraon on 10 February 1846, and accepted terms of surrender in the 9 March 1846 Treaty of Lahore. The kingdom had not long survived its founder: “created by the military and administrative genius of one man, it crumbled into powder when the spirit which gave it life was withdrawn; and the inheritance of the Khalsa passed into the hands of the English.”

Ranjit Singh’s influence on modern J&K was even greater through his having mentored the Rajput Gulab Singh Dogra (1792-1857) and his brothers Dhyan Singh and Suchet Singh. Jammu had been ruled by Ranjit Deo until 1780 when the Sikhs made it tributary to the Lahore Court. Gulab Singh, a great grand nephew of Ranjit Deo, had left home at age 17 in search of a soldierly fortune, and ended up in 1809 in Ranjit Singh’s army, just when Ranjit Singh had acquired for himself a free hand to expand his domains north of the River Sutlej.

Gulab Singh, an intrepid soldier, by 1820 had Jammu conferred upon him by Ranjit Singh with the title of Raja, while Bhimber, Chibal, Poonch and Ramnagar went to his brothers. Gulab Singh, “often unscrupulous and cruel, was a man of considerable ability and efficiency”; he “found his small kingdom a troublesome charge but after ten years of constant struggles he and his two brothers became masters of most of the country between Kashmir and the Punjab”, though Srinagar Valley itself remained under a separate Governor appointed by the Lahore Court. Gulab Singh extended Jammu’s rule from Rawalpindi, Bhimber, Rajouri, Bhadarwah and Kishtwar, across Laddakh and into Tibet. His General Zorawar Singh led six expeditions into Laddakh between 1834 and 1841 through Kishtwar, Padar and Zanskar. In May 1841, Zorawar left Leh with an army of 5000 Dogras and Laddakhis and advanced on Tibet. Defeating the Tibetans at Rudok and Tashigong, he reached Minsar near Lake Mansarovar from where he advanced to Taklakot (Purang), 15 miles from the borders of Nepal and Kumaon, and built a fort stopping for the winter. Lhasa sent large re-inforcements to meet him. Zorawar, deciding to take the offensive, was killed in the Battle of Toyu, on 11-12 December 1841 at 16,000 feet.

A Laddakhi rebellion resulted against Jammu, aided now by the advancing Tibetans. A new army was sent under Hari Chand suppressing the rebellion and throwing back the Tibetans, leading to a peace treaty between Lhasa and Jammu signed on 17 September 1842: “We have agreed that we have no ill-feelings because of the past war. The two kings will henceforth remain friends forever. The relationship between Maharajah Gulab Singh of Kashmir and the Lama Guru of Lhasa (Dalai Lama) is now established. The Maharajah Sahib, with God (Kunchok) as his witness, promises to recognise ancient boundaries, which should be looked after by each side without resorting to warfare. When the descendants of the early kings, who fled from Laddakh to Tibet, now return they will not be stopped by Shri Maharajah. Trade between Laddakh and Tibet will continue as usual. Tibetan government traders coming into Laddakh will receive free transport and accommodations as before, and the Laddakhi envoy will, in turn, receive the same facilities in Lhasa. The Laddakhis take an oath before God (Kunchok) that they will not intrigue or create new troubles in Tibetan territory. We have agreed, with God as witness, that Shri Maharajah Sahib and the Lama Guru of Lhasa will live together as members of the same household.” The traditional boundary between Laddakh and Tibet “as recognised by both sides since olden times” was accepted by the envoys of Gulab Singh and the Dalai Lama.

An earlier 1684 treaty between Laddakh and Lhasa had said that while Laddakh would send tribute to Lhasa every three years, “the king of Laddakh reserves to himself the village of Minsar in Ngarees-khor-sum, that he may be independent there; and he sets aside its revenue for the purpose of meeting the expense involved in keeping up the sacrificial lights at Kangree (Kailas), and the Holy Lakes of Mansarovar and Rakas Tal”. The area around Minsar village near Lake Mansarovar, held by the rulers of Laddakh since 1583, was retained by Jammu in the 1842 peace-treaty, and its revenue was received by J&K State until 1948.

After Ranjit Singh’s death in 1839, Gulab Singh was alienated from the Lahore Court where the rise of his brothers and a nephew aroused enough Khalsa jealousy to see them assassinated in palace intrigues. While the Sikhs imploded, Gulab Singh had expanded his own dominion from Rawalpindi to Minsar ~ everywhere except Srinagar Valley itself. He had apparently advised the Sikhs not to attack the British in breach of the 1809 Treaty, and when they did so he had not joined them, though had he done so British power in North India might have been broken. The British were grateful for his neutrality and also his help in their first misbegotten adventure in Afghanistan. It was Gulab Singh who was now encouraged by both the British and the Sikhs to mediate between them, indeed “to take a leading part in arranging conditions of peace”, and he formally represented the Sikh regency in the negotiations. The 9 March 1846 Treaty of Lahore “set forth that the British Government having demanded in addition to a certain assignment of territory, a payment of a crore and a half of rupees, and the Sikh Government being unable to pay the whole”, Dalip Singh “should cede as equivalent to one crore the hill country belonging to the Punjab between the Beas and the Indus including Kashmir and the Hazara”.

For the British to occupy the whole of this mountainous territory was judged unwise on economic and military grounds; it was not feasible to occupy from a military standpoint and the area “with the exception of the small Valley of Kashmir” was “for the most part unproductive”. “On the other hand, the ceded tracts comprised the whole of the hereditary possessions of Gulab Singh, who, being eager to obtain an indefeasible title to them, came forward and offered to pay the war indemnity on condition that he was made the independent ruler of Jammu & Kashmir.

A separate treaty embodying this arrangement was thus concluded between the British and Gulab Singh at Amritsar on 16 March 1846.” Gulab Singh acknowledged the British Government’s supremacy, and in token of it agreed to present annually to the British Government “one horse, twelve shawl goats of approved breed and three pairs of Kashmir shawls. This arrangement was later altered; the annual presentation made by the Kashmir State was confined to two Kashmir shawls and three romals (handkerchiefs).” The Treaty of Amritsar “put Gulab Singh, as Maharaja, in possession of all the hill country between the Indus and the Ravi, including Kashmir, Jammu, Laddakh and Gilgit; but excluding Lahoul, Kulu and some areas including Chamba which for strategic purposes, it was considered advisable (by the British) to retain and for which a remission of Rs 25 lakhs was made from the crore demanded, leaving Rs 75 lakhs as the final amount to be paid by Gulab Singh.” The British retained Hazara which in 1918 was included into NWFP. Through an intrigue emanating from Prime Minister Lal Singh in Lahore, Imamuddin, the last Sikh-appointed Governor of Kashmir, sought to prevent Gulab Singh taking possession of the Valley in accordance with the Treaty’s terms. By December 1846 Gulab Singh had done so, though only with help of a British force which included 17,000 Sikh troops “who had been fighting in the campaign just concluded”. (Contemporary British opinion even predicted Sikhism like Buddhism “would become extinct in a short time if it were not kept alive by the esprit de corps of the Sikh regiments”.)

The British in 1846 may have been glad enough to allow Gulab Singh take independent charge of the new entity that came to be now known as the “State of Jammu & Kashmir”. Later, however. they and their American allies would grow keen to control or influence the region vis-à-vis their new interests against the Russian and Soviet Empires.

From the 1846 Treaty of Amritsar creating the State of Jammu & Kashmir until the collapse of the USSR in 1991, Britain and later the USA became increasingly interested in the subcontinent’s Northwest. The British came to India by sea to trade. Barren, splendid, landlocked Afghanistan held no interest except as a home of fierce tribes; but it was the source of invasions into the Indian plains and prompted a British misadventure to install Shah Shuja in place of Dost Mohammad Khan leading to ignominious defeat. Later, Afghanistan was seen as the underbelly of the Russian and Soviet empires, and hence a location of interest to British and American strategic causes.

In November 1954, US President Dwight Eisenhower authorized 30 U-2 spy aircraft to be produced for deployment against America’s perceived enemies, especially to investigate Soviet nuclear missiles which could reach the USA. Reconnaissance balloons had been unsuccessful, and numerous Western pilots had been shot down taking photographs from ordinary military aircraft. By June 1956, U-2 were making clandestine flights over the USSR and China. But on May 1 1960, one was shot or forced down over Sverdlovsk, 1,000 miles within Soviet territory. The Americans prevaricated that it had taken off from Turkey on a weather-mission, and been lost due to oxygen problems. Nikita Kruschev then produced the pilot, Francis Gary Powers, who was convicted of spying, though was exchanged later for a Soviet spy. Powers had been headed towards Norway, his task to photograph Soviet missiles from 70,000 ft, his point of origin had been an American base 20 miles from Peshawar.

America needed clandestine “forward bases” from which to fly U-2 aircraft, and Pakistan’s ingratiating military and diplomatic establishment was more than willing to offer such cooperation, fervently wishing to be seen as a “frontline state” against the USSR. “We will help you defeat the USSR and we are hopeful you will help us defeat India” became their constant refrain. By 1986, the Americans had been permitted to build air-bases in Balochistan and also use Mauripur air-base near Karachi.

Jammu & Kashmir and especially Gilgit-Baltistan adjoins the Pashtun regions whose capital has been Peshawar. In August-November 1947, a British coup d’etat against J&K State secured Gilgit-Baltistan for the new British Dominion of Pakistan.

The Treaty of Amritsar had nowhere required Gulab Singh’s dynasty to accept British political control in J&K as came to be exercised by British “Residents” in all other Indian “Native States”. Despite this, Delhi throughout the late 19th Century relentlessly pressed Gulab Singh’s successors Ranbir Singh and Partab Singh to accept political control. The Dogras acquiesced eventually. Delhi’s desire for control had less to do with the welfare of J&K’s people than with protection of increasing British interests in the area, like European migration to Srinagar Valley and guarding against Russian or German moves in Afghanistan. “Sargin” or “Sargin Gilit”, later corrupted by the Sikhs and Dogras into “Gilgit”, had an ancient people who spoke an archaic Dardic language “intermediate between the Iranian and the Sanskritic”. “The Dards were located by Ptolemy with surprising accuracy on the West of the Upper Indus, beyond the headwaters of the Swat River (Greek: Soastus) and north of the Gandarae (i.e. Kandahar), who occupied Peshawar and the country north of it. This region was traversed by two Chinese pilgrims, Fa-Hsien, coming from the north about AD 400 and Hsuan Tsiang, ascending from Swat in AD 629, and both left records of their journeys.”

Gilgit had been historically ruled by a Hindu dynasty called Trakane; when they became extinct, Gilgit Valley “was desolated by successive invasions of neighbouring rulers, and in the 20 or 30 years ending with 1842 there had been five dynastic revolutions. The Sikhs entered Gilgit about 1842 and kept a garrison there.” When J&K came under Gulab Singh, “the Gilgit claims were transferred with it, and a boundary commission was sent” by the British. In 1852 the Dogras were driven out with 2,000 dead. In 1860 under Ranbir Singh, the Dogras “returned to Gilgit and took Yasin twice, but did not hold it. They also in 1866 invaded Darel, one of the most secluded Dard states, to the south of the Gilgit basin but withdrew again.”

The British appointed a Political Agent in Gilgit in 1877 but he was withdrawn in 1881. “In 1889, in order to guard against the advance of Russia, the British Government, acting as the suzerain power of Kashmir, established the Gilgit Agency”. The Agency was re-established under control of the British Resident in Jammu & Kashmir. “It comprised the Gilgit Wazarat; the State of Hunza and Nagar; the Punial Jagir; the Governorships of Yasin, Kuh-Ghizr and Ishkoman, and Chilas”. In 1935, the British demanded J&K lease to them for 60 years Gilgit town plus most of the Gilgit Agency and the hill-states Hunza, Nagar, Yasin and Ishkuman. Hari Singh had no choice but to acquiesce. The leased region was then treated as part of British India, administered by a Political Agent at Gilgit responsible to Delhi, first through the Resident in J& K and later a British Agent in Peshawar. J& K State no longer kept troops in Gilgit and a mercenary force, the Gilgit Scouts, was recruited with British officers and paid for by Delhi. In April 1947, Delhi decided to formally retrocede the leased areas to Hari Singh’s J& K State as of 15 August 1947. The transfer was to formally take place on 1 August.

On 31 July, Hari Singh’s Governor arrived to find “all the officers of the British Government had opted for service in Pakistan”. The Gilgit Scouts’ commander, a Major William Brown aged 25, and his adjutant, a Captain Mathieson, planned openly to engineer a coup détat against Hari Singh’s Government. Between August and October, Gilgit was in uneasy calm. At midnight on 31 October 1947, the Governor was surrounded by the Scouts and the next day he was “arrested” and a provisional government declared.

Hari Singh’s nearest forces were at Bunji, 34 miles from Gilgit, a few miles downstream from where the Indus is joined by Gilgit River. The 6th J& K Infantry Battalion there was a mixed Sikh-Muslim unit, typical of the State’s Army, commanded by a Lt Col. Majid Khan. Bunji controlled the road to Srinagar. Further upstream was Skardu, capital of Baltistan, part of Laddakh District where there was a small garrison. Following Brown’s coup in Gilgit, Muslim soldiers of the 6th Infantry massacred their Sikh brothers-at-arms at Bunji. The few Sikhs who survived escaped to the hills and from there found their way to the garrison at Skardu.

On 4 November 1947, Brown raised the new Pakistani flag in the Scouts’ lines, and by the third week of November a Political Agent from Pakistan had established himself at Gilgit. Brown had engineered Gilgit and its adjoining states to first secede from J&K, and, after some talk of being independent, had promptly acceded to Pakistan. His commander in Peshawar, a Col. Bacon, as well as Col. Iskander Mirza, Defence Secretary in the new Pakistan and later to lead the first military coup détat and become President of Pakistan, were pleased enough. In July 1948, Brown was awarded an MBE (Military) and the British Governor of the NWFP got him a civilian job with ICI~ which however sent him to Calcutta, where he came to be attacked and left for dead on the streets by Sikhs avenging the Bunji massacre. Brown survived, returned to England, started a riding school, and died in 1984. In March 1994, Pakistan awarded his widow the Sitara-I-Pakistan in recognition of his coup détat.

Gilgit’s ordinary people had not participated in Brown’s coup which carried their fortunes into the new Pakistan, and to this day appear to remain without legislative representation. It was merely assumed that since they were mostly Muslim in number they would wish to be part of Pakistan ~ which also became Liaquat Ali Khan’s assumption about J&K State as a whole in his 1950 statements in North America. What the Gilgit case demonstrates is that J&K State’s descent into a legal condition of ownerless anarchy open to “Military Decision” had begun even before the Pakistani invasion of 22 October 1947 (viz. “Solving Kashmir”, The Statesman, 1-3 December 2005). Also, whatever else the British said or did with respect to J & K, they were closely allied to the new Pakistan on the matter of Gilgit.

The peak of Pakistan’s Anglo-American alliance came with the enormous support in the 1980s to guerrilla forces created and headquartered in Peshawar, to battle the USSR and Afghan communists directly across the Durand Line. It was this guerrilla war which became a proximate cause of the collapse of the USSR as a political entity in 1991. President Ronald Reagan’s CIA chief William J. Casey sent vast sums in 1985-1988 to supply and train these guerrillas. The Washington Post and New Yorker reported the CIA training guerrillas “in the use of mortars, rocket grenades, ground-to-air missiles”. 200 hand-held Stinger missiles were supplied for the first time in 1986 and the New Yorker reported Gulbudin Hikmatyar’s “Hizbe Islami” guerrillas being trained to bring down Soviet aircraft. “Mujahideen had been promised two Stingers for every Soviet aircraft brought down. Operators who failed to aim correctly were given additional training… By 1986, the United States was so deeply involved in the Afghan war that Soviet aircraft were being brought down under the supervision of American experts”. (Raja Anwar, The Tragedy of Afghanistan, 1988, p. 234).

The budding US-China détente brokered by Pakistan came into full bloom here. NBC News on 7 January 1980 said “for the first time in history (a senior State Department official) publicly admitted the possibility of concluding a military alliance between the United States and China”. London’s Daily Telegraph reported on 5 January 1980 “China is flying large supplies of arms and ammunition to the insurgents in Afghanistan. According to diplomatic reports, supplies have arrived in Pakistan from China via the Karakoram Highway…. A major build-up of Chinese involvement is underway ~ in the past few days. Scores of Chinese instructors have arrived at the Shola-e-Javed camps.”

Afghan reports in 1983-1985 said “there were eight training camps near the Afghan border operated by the Chinese in Sinkiang province” and that China had supplied the guerrillas “with a variety of weapons including 40,000 RPG-7 and 20,000 RPG-II anti tank rocket launchers.” Like Pakistan, “China did not publicly admit its involvement in the Afghan conflict: in 1985 the Chinese Mission at the UN distributed a letter denying that China was extending any kind of help to the Afghan rebels” (Anwar, ibid. p. 234). Support extended deep and wide across the Arab world. “The Saudi and Gulf rulers … became the financial patrons of the Afghan rebels from the very start of the conflict”. Anwar Sadat, having won the Nobel Peace Prize, was “keen to claim credit for his role in Afghanistan…. by joining the Afghanistan jihad, Sadat could re-establish his Islamic credentials, or so he believed. He could thus not only please the Muslim nations but also place the USA and Israel in his debt.” Sadat’s Defence Minister said in January 1980: “Army camps have been opened for the training of Afghan rebels; they are being supplied with weapons from Egypt” and Sadat told NBC News on 22 September 1981 “that for the last twenty-one months, the USA had been buying arms from Egypt for the Afghan rebels. He said he had been approached by the USA in December 1979 and he had decided to `open my stores’. He further disclosed that these arms were being flown to Pakistan from Egypt by American aircraft. Egypt had vast supplies of SAM-7 and RPG-7 anti-aircraft and anti-tank weapons which Sadat agreed to supply to Afghanistan in exchange for new American arms. The Soviet weapons, being light, were ideally suited to guerrilla warfare. … the Mujahideen could easily claim to have captured them from Soviet and Afghan troops in battle.… Khomeini’s Iran got embroiled in war (against Iraq) otherwise Kabul would also have had to contend with the full might of the Islamic revolutionaries.” (Anwar ibid. p. 235).

Afghanistan had been occupied on 26-27 December 1979 by Soviet forces sent by the decrepit Leonid Brezhnev and Yuri Andropov to carry out a putsch replacing one communist, Hafizullah Amin, with a rival communist and Soviet protégé, Babrak Karmal. By 1985 Brezhnev and Andropov were dead and Mikhail Sergeyevich Gorbachev had begun his attempts to reform the Soviet system, usher in openness, end the Cold War and in particular withdraw from Afghanistan, which by 1986 he had termed “a bleeding wound”. Gorbachev replaced Karmal with a new protégé Najibullah Khan, who was assigned the impossible task of bringing about national reconciliation with the Pakistan-based guerrillas and form a national government. Soviet forces withdrew from Afghanistan in February 1989 having lost 14,500 dead, while more than a million Afghans had been killed since the invasion a decade earlier.

Not long after Russia’s Bolshevik Revolution, Gregory Zinoviev had said that international communism “turns today to the peoples of the East and says to them, `Brothers, we summon you to a Holy War first of all against British imperialism!’ At this there were cries of Jehad! Jehad! And much brandishing of picturesque Oriental weapons.” (Treadgold, Twentieth Century Russia, 1990, p. 213). Now instead, the Afghan misadventure had contributed to the collapse of the Soviet Empire itself, the USSR ceasing to be a political entity by 1991, and even Gorbachev being displaced by Boris Yeltsin and later Vladimir Putin in a new Russia.

What resulted for the people of the USA and Britain and the West in general was that they no longer had to live under threat of hostile Soviet tanks and missiles, while the people of Russia, Ukraine and the other erstwhile Soviet republics as well as Eastern Europe were able to throw off the yoke of communism that had oppressed them since the Bolshevik Revolution and instead to breathe the air of freedom.

What happened to the people of Afghanistan, however, was that they were plunged into further ghastly civil war for more than ten years. And what happened to the people of Pakistan was that their country was left resembling a gigantic Islamist military camp, awash with airfields, arms, ammunition and trained guerrillas, as well as a military establishment enlivened as always by perpetual hope that these supplies, provisions and personnel of war might find alternative use in attacks against India over J& K. “We helped you when you wished to see the Soviet Union defeated and withdrawing in Afghanistan”, Pakistan’s generals and diplomats pleaded with the Americans and British, “now you must help us in our wish to see India defeated and withdrawing in Kashmir”. Pakistan’s leaders even believed that just as the Soviet Union had disintegrated afterwards, the Indian Union perhaps might be made to do the same. Not only were the two cases as different as chalk from cheese, Palmerstone’s dictum there are no permanent allies in the politics of nations could not have found more apt use than in what actually came to take place next.

Pakistan’s generals and diplomats felt betrayed by the loss of Anglo-American paternalism towards them after 1989.

Modern Pakistanis had never felt they subscribed to the Indian nationalist movement culminating in independence in August 1947. The Pakistani state now finally declared its independence in the world by exploding bombs in a nuclear arsenal secretly created with help purchased from China and North Korea. Pakistan’s leaders thus came to feel in some control of Pakistan’s destiny as a nation-state for the first time, more than fifty years after Pakistan’s formal creation in 1947. If nothing else, at least they had the Bomb.

Secondly, America and its allies would not be safe for long since the civil war they had left behind in Afghanistan while trying to defeat the USSR now became a brew from which arose a new threat of violent Islamism. Osama bin Laden and the Taliban, whom Pakistan’s military and the USA had promoted, now encouraged unprecedented attacks on the American mainland on September 11 2001 ~ causing physical and psychological damage which no Soviet, Chinese or Cuban missiles ever had been allowed to do. In response, America attacked and removed the Taliban regime in Afghanistan, once again receiving the cooperative use of Pakistani manpower and real estate ~ except now there was no longer any truck with the Pakistani establishment’s wish for a quid pro quo of Anglo-American support against India on J&K. Pakistan’s generals and diplomats soon realised their Anglo-American alliance of more than a half-century ended on September 11 2001. Their new cooperation was in killing or arresting and handing over fellow-Muslims and necessarily lacked their earlier feelings of subservience and ingratiation towards the Americans and British, and came to be done instead under at least some duress. No benefit could be reaped any more in the fight against India over Jammu & Kashmir. An era had ended in the subcontinent.

WHAT TO TELL MUSHARRAF: PEACE IS IMPOSSIBLE WITHOUT NON-AGGRESSIVE PAKISTANI INTENTIONS by Subroto Roy, First published in The Statesman December 15 2006 Editorial Page Special Article, www.thestatesman.net

In June 1989 a project at an American university involving Pakistani and other scholars, including one Indian, led to the book Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s published in Karachi, New Delhi and elsewhere. The book reached Nawaz Sharif and the Islamabad elite, and General Musharraf’s current proposal on J&K, endorsed warmly by the US State Department last week, derives from the last paragraph of its editorial introduction: “Kashmir… must be demilitarised and unified by both countries sooner or later, and it must be done without force. There has been enough needless bloodshed on the subcontinent… Modern Pakistanis and Indians are free peoples who can voluntarily agree in their own interests to alter the terms set hurriedly by Attlee or Mountbatten in the Indian Independence Act 1947. Nobody but we ourselves keeps us prisoners of superficial definitions of who we are or might be. The subcontinent could evolve its political identity over a period of time on the pattern of Western Europe, with open borders and (common) tariffs to the outside world, with the free movement of people, capital, ideas and culture. Large armed forces could be reduced and transformed in a manner that would enhance the security of each nation. The real and peaceful economic revolution of the masses of the subcontinent would then be able to begin.”

The editors as economists decried the waste of resources involved in the Pakistan-India confrontation, saying it had “greatly impoverished the general budgets of both Pakistan and India. If it has benefited important sections of the political and military elites of both countries, it has done so only at the expense of the general welfare of the masses.”

International law

Such words may have been bold in the early 1990s but today, a decade and a half later, they seem incomplete and rather naïve even to their author, who was myself, the only Indian in that project. Most significantly, the position in international law in the context of historical facts had been wholly neglected. So had been the manifest nature of the contemporary Pakistani state.

Jammu & Kashmir became an entity in international law when the Treaty of Amritsar was signed between Gulab Singh and the British on March 16 1846. British India itself became an entity in international law much later, possibly as late as June 1919 when it signed the Treaty of Versailles. As for Pakistan, it had no existence in world history or international law until August 14 1947, when the British created it as a new entity out of certain demarcated areas of British India and gave it the status of a Dominion. British India dissolved itself on August 15 1947 and the Dominion of India became its successor-state in international law on that date. As BR Ambedkar pointed out at the time, the new India automatically inherited British India’s suzerainty over any and all remaining “princely” states of so-called “Indian India”. In case of J&K in particular, there never was any question of it being recognised as an independent entity in global international law.

The new Pakistan, by entering a Standstill Agreement with J&K as of August 15 1947, did locally recognise J&K’s sovereignty over its decision whether to join Pakistan or India. But this Pakistani recognition lasted only until the attack on J&K that commenced from Pakistani territory as of October 22 1947, an attack in which Pakistani forces were complicit (something which, in different and mutating senses, has continued ever since). The Dominion of India had indicated it might have consented if J&K’s Ruler had decided to accede to Pakistan in the weeks following the dissolution of British India. But no such thing happened: what did happen was the descent of J&K into a condition of legal anarchy.

Beginning with the Pakistani attack on J&K as of October 22 upto and including the Rape of Baramulla and the British-led Pakistani coup détat in Gilgit on one side, and the arrival of Indian forces as well as mobilization by Sheikh Abdullah and Bakshi Ghulam Mohammad of J&K’s civilians to repel the Pakistani invaders on the other side, the State of Jammu & Kashmir became an ownerless entity in international law. In Roman Law, from which all modern international and municipal law ultimately derives, the ownership of an ownerless entity is open to be determined by “military decision”. The January 1949 Ceasefire Line that came to be renamed the Line of Control after the 1971 Bangladesh War, demarcates the respective territories that the then-Dominions and later Republics of India and Pakistan acquired by “military decision” of the erstwhile State of J&K which had come to cease to exist.

What the Republic of India means by saying today that boundaries cannot be redrawn nor any populations forcibly transferred is quite simply that the division of erstwhile J&K territory is permanent, and that sovereignty over it is indivisible. It is only sheer ignorance on the part of General Musharraf’s Indian interviewer the other day which caused it to be said that Pakistan was willing to “give up” its claim on erstwhile J&K State territory which India has held: Pakistan has never had nor even made such a claim in international law. What Pakistan has claimed is that India has been an occupier and that there are many people inhabiting the Indian area who may not wish to be Indian nationals and who are being compelled against their will to remain so ~ forgetting to add that precisely the same could be said likewise of the Pakistani-held area.

Accordingly, the lawful solution proposed in these pages a year ago to resolve that matter, serious as it is, has been that the Republic of India invite every person covered under Article 370, citizen-by- citizen, under a condition of full information, to privately and without fear decide, if he/she has not done so already, between possible Indian, Iranian, Afghan or Pakistani nationalities ~ granting rights and obligations of permanent residents to any of those persons who may choose for whatever private reason not to remain Indian nationals. If Pakistan acted likewise, the problem of J&K would indeed come to be resolved. The Americans, as self- appointed mediators, have said they wish “the people of the region to have a voice” in a solution: there can be no better expression of such voice than allowing individuals to privately choose their own nationalities and their rights and responsibilities accordingly. The issue of territorial sovereignty is logically distinct from that of the choice of nationality by individual inhabitants.

Military de-escalation

Equally significant though in assessing whether General Musharraf’s proposal is an anachronism, is Pakistan’s history since 1947: through Ayub’s 1965 attack, the civil war and secession of Bangladesh, the Afghan war and growth of the ISI, the Kargil incursion, the 1999 coup détat, and, once or twice removed, the 9/11 attacks against America. It is not a history that allows any confidence to arise in Indians that we are not dealing with a country misgoverned by a tiny arrogant exploitative military elite who remain hell-bent on aggression against us. Like the USA and USSR twenty years ago, what we need to negotiate about, and negotiate hard about, is an overall mutual military drawdown and de-escalation appropriate to lack of aggressive intent on both sides. Is General Musharraf willing to discuss that? It would involve reciprocal verifiable assessment of one another’s reasonable military requirements on the assumption that each was not a threatening enemy of the other. That was how the USA-USSR drawdown and de-escalation occurred successfully. If General Musharraf is unwilling to enter such a discussion, there is hardly anything to talk about with him. We should wait for democracy to return.

SIX

by Subroto Roy, December 17 2008

Pakistan President Asif Ali Zardari’s recent argument in the New York Times resembles closely the well-known publications of his ambassador to the United States, Mr Husain Haqqani. Unfortunately, this Zardari-Haqqani thesis about Pakistan’s current predicament in the world and the world’s predicament with Pakistan is shot through with clear factual and logical errors. These need to be aired because true or useful conclusions cannot be reached from mistaken premises or faulty reasoning.

1. Origins of Pakistan, India, J&K, and their mutual problems

Mr Zardari makes the following seemingly innocuous statement:

“…. the two great nations of Pakistan and India, born together from the same revolution and mandate in 1947, must continue to move forward with the peace process.”

Now as a matter of simple historical fact, the current entities in the world system known as India and Pakistan were not “born together from the same revolution and mandate in 1947”. It is palpably false to suppose they were and Pakistanis indulge in wishful thinking and self-deception about their own political history if they suppose this.

India’s Republic arose out of the British Dominion known as “India” which was the legal successor of the entity known previously in international law as “British India”. British India had had secular governance and so has had the Indian Republic.

By contrast, the Islamic Republic of Pakistan arose out of a newly created state in international law known as the British Dominion of Pakistan, consisting of designated territory carved out of British India by a British decision and coming into existence one day before British India extinguished itself. (Another new state, Bangladesh, later seceded from Pakistan.)

The British decision to create territory designated “Pakistan” had nothing to do with any anti-British “revolution” or “mandate” supported by any Pakistani nationalism because there was none. (Rahmat Ali’s anti-Hindu pamphleteering in London could be hardly considered Pakistani nationalism against British rule. Khan Abdul Ghaffar Khan’s Pashtun patriots saw themselves as Indian, not Pakistani.)

To the contrary, the British decision had to do with a small number of elite Pakistanis — MA Jinnah foremost among them — demanding not to be part of the general Indian nationalist movement that had been demanding a British departure from power in the subcontinent. Jinnah’s separatist party, the Muslim League, was trounced in the 1937 provincial elections in all the Muslim-majority areas of British India that would eventually become Pakistan. Despite this, in September 1939, Britain, at war with Nazi Germany, chose to elevate the political power of Jinnah and his League to parity with the general Indian nationalist movement led by MK Gandhi. (See, Francis Robinson, in William James and Subroto Roy (eds), Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s.) Britain needed India’s mostly Muslim infantry-divisions — the progenitors of the present-day Pakistan Army — and if that meant tilting towards a risky political idea of “Pakistan” in due course, so it would be. The thesis that Pakistan arose from any kind of “revolution” or “mandate” in 1947 is fantasy — the Muslim super-elite that invented and endorsed the Pakistan idea flew from Delhi to Karachi in chartered BOAC Dakotas, caring not a hoot about the vulnerability of ordinary Muslim masses to Sikh and Hindu majority wrath and retaliation on the ground.

Modern India succeeded to the rights and obligations of British India in international law, and has had a recognized existence as a state since at least the signing of the Armistice and Treaty of Versailles in 1918-1919. India was a founding member of the United Nations, being a signatory of the 1945 San Francisco Declaration, and an original member of the Bretton Woods institutions. An idea put forward by Argentina that as of 1947 India and Pakistan were both successor states of British India was rejected by the UN (Argentina withdrew its own suggestion), and it was universally acknowledged India was already a member of the UN while Pakistan would have to (and did) apply afresh for membership as a newly created state in the UN. Pakistan’s entry into the UN had the enthusiastic backing of India and was opposed by only one existing UN member, Afghanistan, due to a conflict that continues to this day over the legitimacy of the Durand Line that bifurcated the Pashtun areas.

Such a review of elementary historical facts and the position in law of Pakistan and India is far from being of merely pedantic interest today. Rather, it goes directly to the logical roots of the conflict over the erstwhile State of Jammu and Kashmir (J&K) — a state that itself originated as an entity in the world system a full century before Pakistan was to do so and more than half a century before British India did, but which would collapse into anarchy and civil war in 1947-1949.

Britain (or England) had been a major nation-state in the world system recognized since Grotius first outlined modern international law. On March 16 1846, Britain entered into a treaty, the Treaty of Amritsar, with one Gulab Singh, and the “State of Jammu & Kashmir” came to arise as a recognizable entity in international law for the first time. (See my “History of Jammu and Kashmir” published in The Statesman, Oct 29-30 2006, available elsewhere here.)

Jammu & Kashmir continued in orderly existence as a state until it crashed into legal and political anarchy and civil war a century later. The new Pakistan had entered into a “Standstill Agreement” with the State of Jammu & Kashmir as of August 15 1947. On or about October 22 1947, Pakistan unilaterally ended that Standstill Agreement and instead caused military forces from its territory to attack the State of Jammu & Kashmir along the Mansehra Road towards Baramula and Srinagar, coinciding too with an Anglo-Pakistani coup d’etat in Gilgit and Baltistan (see my “Solving Kashmir”; “Law, Justice & J&K”; “Pakistan’s Allies”, all published in The Statesman in 2005-2006 and available elsewhere here).

The new Pakistan had chosen, in all deliberation, to forswear law, politics and diplomacy and to resort to force of arms instead in trying to acquire J&K for itself via a military decision. It succeeded only partially. Its forces took and then lost both Baramula and Kargil; they may have threatened Leh but did not attempt to take it; they did take and retain Muzaffarabad and Skardu; they were never near taking the summer capital, Srinagar, though might have threatened the winter capital, Jammu.

All in all, a Ceasefire Line came to be demarcated on the military positions as of February 1 1949. After a war in 1971 that accompanied the secession of Bangladesh from Pakistan, that Ceasefire Line came to be renamed the “Line of Control” between Pakistan and India. An ownerless entity may be acquired by force of arms — the erstwhile State of Jammu & Kashmir in 1947-1949 had become an ownerless entity that had been dismembered and divided according to military decision following an armed conflict between Pakistan and India. The entity in the world system known as the “State of Jammu & Kashmir” created on March 16 1846 by Gulab Singh’s treaty with the British ceased to exist as of October 22 1947. Pakistan had started the fight over J&K but there is a general rule of conflicts that he who starts a fight does not get to finish it.

Such is the simplest and most practical statement of the history of the current problem. The British, through their own compulsions and imperial pretensions, raised all the talk about a “Lapse of Paramountcy” of the British Crown over the “Native Princes” of “Indian India”, and of how, the “Native Princes” were required to “accede” to either India or Pakistan. This ignored Britain’s own constitutional law. BR Ambedkar pointed out with unsurpassed clarity that no “Lapse of Paramountcy” was possible even for a single logical moment since “Paramountcy” over any “Native Princes” who had not joined India or Pakistan as of August 15 1947, automatically passed from British India to its legal successor, namely, the Dominion of India. It followed that India’s acquiescence was required for any subsequent accession to Pakistan – an acquiescence granted in case of Chitral and denied in case of Junagadh.

What the Republic of India means by saying today that boundaries cannot be redrawn nor any populations forcibly transferred is quite simply that the division of erstwhile J&K territory is permanent, and that sovereignty over it is indivisible. What Pakistan has claimed is that India has been an occupier and that there are many people inhabiting the Indian area who may not wish to be Indian nationals and who are being compelled against their will to remain so ~ forgetting to add that precisely the same could be said likewise of the Pakistani-held area. The lawful solution I proposed in “Solving Kashmir, “Law, Justice and J&K” and other works has been that the Republic of India invite every person covered under its Article 370, citizen-by-citizen, under a condition of full information, to privately and without fear decide, if he/she has not done so already, between possible Indian, Iranian, Afghan or Pakistani nationalities ~ granting rights and obligations of permanent residents to any of those persons who may choose for whatever private reason not to remain Indian nationals. If Pakistan acted likewise, the problem of J&K would indeed come to be resolved. The Americans, as self-appointed mediators, have said they wish “the people of the region to have a voice” in a solution: there can be no better expression of such voice than allowing individuals to privately choose their own nationalities and their rights and responsibilities accordingly. The issue of territorial sovereignty is logically distinct from that of the choice of nationality by individual inhabitants.

2. Benazir’s assassination falsely compared to the Mumbai massacres
Secondly, President Zardari draws a mistaken comparison between the assassination last year of his wife, Benazir Bhutto, and the Mumbai massacres a few weeks ago. Ms Bhutto’s assassination may resemble more closely the assassinations in India of Indira Gandhi in 1984 and Rajiv Gandhi in 1991.

Indira Gandhi died in “blowback” from the unrest she and her younger son and others in their party had opportunistically fomented among Sikh fundamentalists and sectarians since the late 1970s. Rajiv Gandhi died in “blowback” from an erroneous imperialistic foreign policy that he, as Prime Minister, had been induced to make by jingoistic Indian diplomats, a move that got India’s military needlessly involved in the then-nascent Sri Lankan civil war. Benazir Bhutto similarly may be seen to have died in “blowback” from her own political activity as prime minister and opposition leader since the late 1980s, including her own encouragement of Muslim fundamentalist forces. Certainly in all three cases, as in all assassinations, there were lapses of security too and imprudent political judgments made that contributed to the tragic outcomes.

Ms Bhutto’s assassination has next to nothing to do with the Mumbai massacres, besides the fact the perpetrators in both cases were Pakistani terrorists. President Zardari saying he himself has lost his wife to terrorism is true but not relevant to the proper diagnosis of the Mumbai massacres or to Pakistan-India relations in general. Rather, it serves to deflect criticism and condemnation of the Pakistani state’s pampered handing of Pakistan’s terrorist masterminds, as well as the gross irresponsibility of Pakistan’s military scientists (not AQ Khan) who have been recently advocating a nuclear first strike against India in the event of war.

3. Can any religious nation-state be viable in the modern world?

President Zardari’s article says:

“The world worked to exploit religion against the Soviet Union in Afghanistan by empowering the most fanatic extremists as an instrument of destruction of a superpower. The strategy worked, but its legacy was the creation of an extremist militia with its own dynamic.”

This may be overly simplistic. As pointed out in my article “Pakistan’s Allies”, Gregory Zinoviev himself after the Bolshevik Revolution had declared that international communism “turns today to the peoples of the East and says to them, ‘Brothers, we summon you to a Holy War first of all against British imperialism!’ At this there were cries of Jehad! Jehad! And much brandishing of picturesque Oriental weapons.” (Treadgold, Twentieth Century Russia, 1990, p. 213). For more than half of the 20th century, orthodox Muslims had been used by Soviet communists against British imperialism, then by the British and Americans (through Pakistan) against Soviet communism. Touché! Blowback and counter-blowback! The real question that arises from this today may be why orthodox Muslims have allowed themselves to be used either way by outside forces and have failed in developing a modern nation-state and political culture of their own. Europe and America only settled down politically after their religious wars were over. Perhaps no religious nation-state is viable in the modern world.

4. Pakistan’s behaviour leads to schizophrenia in international relations

President Zardari pleads for, or perhaps demands, resources from the world:

“the best response to the Mumbai carnage is to coordinate in counteracting the scourge of terrorism. The world must act to strengthen Pakistan’s economy and democracy, help us build civil society and provide us with the law enforcement and counterterrorism capacities that will enable us to fight the terrorists effectively.”

Six million pounds from Mr Gordon Brown, so much from here or there etc – President Zardari has apparently demanded 100 billion dollars from America and that is the price being talked about for Pakistan to dismantle its nuclear weapons and be brought under an American “nuclear umbrella” instead.

I have pointed out elsewhere that what Pakistan seems to have been doing in international relations for decades is send out “mixed messages” – i.e. contradictory signals, whether in thought, word or deed. Clinical psychologists following the work of Gregory Bateson would say this leads to confusion among Pakistan’s interlocutors (a “double bind”) and the symptoms arise of what may be found in schizophrenic relationships. (See my article “Do President-elect Obama’s Pakistan specialists believe…”; on the “double bind” theory, an article I chanced to publish in the Journal of Genetic Psychology, 1986, may be of interest).

Here are a typical set of “mixed messages” emanating from Pakistan’s government and opinion-makers:

“We have nuclear weapons
“We keep our nuclear weapons safe from any misuse or unauthorized use
“We are willing to use nuclear weapons in a first strike against India
“We do not comprehend the lessons of Hiroshima-Nagasaki
“We do not comprehend the destruction India will visit upon us if we strike them
“We are dangerous so we must not be threatened in any way
“We are peace-loving and want to live in peace with India and Afghanistan
“We love to play cricket with India and watch Bollywood movies
“We love our Pakistan Army as it is one public institution that works
“We know the Pakistan Army has backed armed militias against India in the past
“We know these militias have caused terrorist attacks
“We are not responsible for any terrorist attacks
“We do not harbour any terrorists
“We believe the world should pay us to not use or sell our nuclear weapons
“We believe the world should pay us to not encourage the terrorists in our country
“We believe the world should pay us to prevent terrorists from using our nuclear weapons
“We hate India and do not want to become like India
“We love India and want to become like India
“We are India and we are not India…”

Etc.

A mature rational responsible and self-confident Pakistan would have said instead:

“We apologise to India and other countries for the outrageous murders our nationals have committed in Mumbai and elsewhere
“We ask the world to watch how our professional army is deployed to disarm civilian and all “non-state” actors of unauthorized firearms and explosives
“We do not need and will not demand or accept a dollar in any sort of foreign aid, military or civilian, to solve our problems
“We realize our economic and political institutions are a mess and we must clean them up
“We will strive to build a society imbued with what Iqbal described as the spirit of modern times..”

As someone who created at great personal cost at an American university twenty years ago the book Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s, I have a special interest in hoping that Pakistan shall find the path of wisdom.”

I have almost stopped being amazed by the near-imbecility that our English-language TV and print media seem so often to be capable of. Oui mes enfants, Kasab did confess to mass-murder and other crimes in open court today but please do not feign such surprise for commercial reasons — if you had done your homework diligently you would have known that Kasab had confessed quite as fully as he did today many months ago, in fact as soon as he was physically able to do so after being treated in hospital following his capture by Mumbai police. (The BBC proved again it has no institutional memory left by failing to remember these facts too and instead relying on the Indian TV media today. Or, alternatively, the BBC’s dual national Pakistani staffers were quick to get the BBC to veer towards the official GoP line — and the GoP certainly has not wanted to remember the fact Kasab was being truthful from day one of his capture.)

Why was Kasab’s court-appointed lawyer silent and bewildered today? Because Kasab (with his Class 4 schooling) had somehow thought things through on his own during this existential experience and effectively sacked the lawyer peremptorily as was his right to do. It was the lawyer who had chalked out the faulty legal strategy of starting off by pleading not-guilty instead of plea-bargaining on the basis of Kasab’s initial confessions being the primary source of evidence for the Government of India to be able to indict Pakistan in the Mumbai massacres.

(To the lawyer’s credit though, at least he had taken the case when no one else would and furthermore, he had clearly acted in good faith.)

Had Kasab been killed along with his 9 compatriot fellow-terrorists (and he was the youngest and least experienced which is probably why he was teamed with Ishmael who was the team leader), India would have had almost no hard evidence in creating the dossier that we were able to confront Pakistan with.

Kasab’s correct legal strategy was to accept his guilt and plead for mercy on the basis of having turned State’s evidence, indeed the Government of India’s star witness for the prosecution. There is absolutely no jurisprudential benefit in seeing a tiny pawn like him– the very tiniest of all pawns –hang for his evil deeds. That is why I said back in November-December that if I was the judge sentencing him, I would send him to jail for 20-30 years, for his 20 or 30 victims at CST station, and get him to become a model prisoner who could become a prime spokesman against the terrorists who had sent him.

The right way for India and Pakistan to cooperate against the perpetrators of the Mumbai massacres was via a prompt application of common maritime law and the Law of the Sea Treaty’s provisions against piracy, murder etc on the high seas, followed by some well-publicised hangings at sea, on a Pakistan Navy vessel, of the masterminds. Here is a complete list of what I said here between November 28 2008 and March 18 2009 on all this:

1. November 28, 2008 Jews have never been killed in India for being Jews until this sad day

Jews have never been killed in India for being Jews until today. For two thousand years, in fact perhaps as long as there have ever been Jews in the world, there had been Jews living peacefully in India. I used to say that proudly to my Jewish friends, adding that the Indian Army had even had a Jewish general. Today, November 28 2008, or perhaps yesterday November 27 2008, that changed. Five Hasidic Jews who had been peaceful residents of Nariman House in Mumbai, came to be murdered by terrorists, merely for being Jews, or died in explosions or in the cross-fire between the terrorists and Indian security forces. The Israeli Government had offered India their well-known technical expertise in trying to save their fellow-nationals. I believe the Government of India made a tragic mistake by not accepting it. Yes certainly our national prestige would have taken the slightest of blows if Israeli commandos had helped to release Israeli hostages in India. But our national prestige has taken a much vaster and more permanent blow instead, now that we can no longer say that Jews have never in history been killed for being Jews in India. I am especially sad on this already very sad day to see that proud record destroyed.

2. November 30, 2008 In international law, Pakistan has been the perpetrator, India the victim of aggression in Mumbai

In international law, the attacks on Mumbai would probably reveal Pakistan to have been the aggressor state, India the victim of aggression. It is standard law that a “master” is responsible for the misdeeds of his “servant”. E.g., “Where the relation of master and servant clearly exists, the employer is responsible for injury occasioned by the negligent conduct of the servant in carrying out his orders. And this rule is so extensive as to make the master liable for the careless, reckless and wanton conduct of his servant, provided it be within the scope of his employment”. President Zardari and Prime Minister Gillani may declare truthfully they had no prior knowledge of the attacks on Mumbai, that these were not in any way authorized by them or their Government. But it seems likely on the basis of current evidence that the young terrorists who attacked Mumbai were still in a “master-servant” relationship with elements of the Pakistani state and had been financed, trained, motivated and supplied by resources arising, directly or indirectly, from the Pakistani exchequer. Public moneys in Pakistan came to be used or misused to pay for aggression against India – in a quite similar pattern to the October 1947 attack on Kashmir, Ayub Khan’s 1965 “Operation Grand Slam”, and Pervez Musharraf’s 1999 attack on Kargil. And to think that these youth who were made into becoming terroristic mass murderers were toddlers when the USSR withdrew from Afghanistan, in primary school when the 1993 WTC bombing happened and adolescents at the time of the 9/11 attacks.

3. December 3, 2008 Habeas Corpus: a captured terrorist mass-murderer tells a magistrate he is not being mistreated by Indian police

A youth who had been a petty thief in Multan, was induced by Pakistan’s terrorist masterminds to train to become a mass murderer with an assault rifle and grenades in the Mumbai massacres last week. He was shot and arrested by India’s police and is now in custody. He has already been produced before a magistrate who asked him if he was being mistreated, to which he said he was not. This redounds to India’s credit in view of the vast (and yes, probably racist) mistreatment over years of those held e.g. at Guantanamo Bay. (The argument that the US Constitution and the laws associated with habeas corpus did not apply to the US Government because Guantanamo Bay was not American territory, was always specious.)

4. December 4, 2008 India’s Muslim Voices (Or, Let us be clear the Pakistan-India or Kashmir conflicts have not been Muslim-Hindu conflicts so much as intra-Muslim conflicts about Muslim identity and self-knowledge on the Indian subcontinent) bySubroto Roy

Ill-informed Western observers, especially at purported “think tanks” and news-portals, frequently proclaim the Pakistan-India confrontation and Jammu & Kashmir conflict to represent some kind of savage irreconcilable division between Islamic and Hindu cultures. For example, the BBC, among its many prevarications on the matter (like lopping off J&K entirely from its recently broadcasted maps of India, perhaps under influence of its Pakistani staffers), frequently speaks of “Hindu-majority India” and “Indian-administered Kashmir” being confronted by Muslim Pakistan. And two days ago from California’s Bay Area arose into the Internet Cloud the following profundity: “What we’re dealing with now, in the Pakistani-Indian rivalry, is a true war of civilizations, pitting Muslims against Hindus…. the unfathomable depths of the Muslim-Hindu divide….”. Even President-elect Obama’s top Pakistan-specialists have fallen for the line of Washington’s extremely strong Pakistan lobby: “Pakistan… sees itself as the political home for the subcontinent’s Muslim population and believes India’s continued control over the Muslim-majority Kashmir valley and denial of a plebiscite for its inhabitants represent a lingering desire on India’s part to undo the legacy of partition, which divided the British Indian Empire into India and Pakistan.”

The truth on record is completely different and really rather simple: for more than a century and a half, Muslims qua Muslims on the Indian subcontinent have struggled with the question of their most appropriate cultural and political identity. The starkest contrast may be found in their trying to come to terms with their partly Arabic and partly Hindu or Indian parentage (the words Hindu, Sindhu, Indus, Indian, Sindhi, Hindi etc all clearly have the same Hellenistic root). For example, there was Wali Allah (1703-1762) declaring “We are an Arab people whose fathers have fallen in exile in the country of Hindustan, and Arabic genealogy and Arabic language are our pride”. But here has been Mohammad Iqbal (1877-1938), in his 1930 Allahabad speech to the Muslim League, conceiving today’s Pakistan as a wish to become free of precisely that Arab influence: “I would like to see the Punjab, NWFP, Sind and Baluchistan amalgamated into a single state… The life of Islam as a cultural force in this living country very largely depends on its centralisation in a specified territory… For India it means security and peace resulting from an internal balance of power, for Islam an opportunity to rid itself of the stamp that Arabian Imperialism was forced to give it, to mobilise its law, its education, its culture, and to bring them into closer contact with its own original spirit and the spirit of modern times.” In an article “Saving Pakistan” published last year in The Statesman and available elsewhere here, it was suggested Iqbal’s “spirit of modern times” may be represented most prominently today by the physicist/political philosopher Pervez Hoodbhoy: in a December 2006 speech Hoodbhoy suggested a new alternative to MA Jinnah’s “Faith, Unity, Discipline” slogan: “First, I wish for minds that can deal with the complex nature of truth…. My second wish is for many more Pakistanis who accept diversity as a virtue… My third, and last, wish is that Pakistanis learn to value and nurture creativity.” He has spoken too of bringing “economic justice to Pakistan”, of the “fight to give Pakistan’s women the freedom which is their birthright”, and of people to “wake up” and engage politically. But Pakistan’s Iqbalian liberals like Hoodbhoy still have to square off with those of their compatriots who sent the youthful squad into Mumbai last week with assault rifles, grenades and heroic Arabic code-names, as well as orders to attack civilians with the ferocity of the original Muslims attacking caravans and settlements in ancient Arabia.

What the extremely strong Pakistan lobbies within the British and American political systems have suppressed in order to paint a picture of eternal Muslim-Hindu conflict is the voice of India’s nationalist Muslims, who historically have had no wish to have any truck with any idea of a “Pakistan” at all. Most eminent among them was undoubtedly Jinnah’s fiercest critic: Maulana Abul Kalam Azad whose classic 1946 statement on Pakistan is available in his India Wins Freedom, the final version published only in 1988……

5. December 6, 2008 A Quick Comparison Between the September 11 2001 NYC-Washington attacks and the November 26-28 2008 Mumbai Massacres (An Application of the Case-by-Case Philosophical Technique of Wittgenstein, Wisdom and Bambrough) bySubroto Roy

In my book Philosophy of Economics (Routledge, 1989) and in my August 24 2004 public lecture in England “Science, Religion, Art and the Necessity of Freedom”, both available elsewhere here, I described the “case-by-case” philosophical technique recommended by Ludwig Wittgenstein, John Wisdom and Renford Bambrough. (Bambrough had also shown a common root in the work of the American philosopher Charles Sanders Peirce.) Herewith an application of the technique to a contemporary problem that shows the “family resemblance” between two modern terrorist attacks, the September 11 2001 attack on New York and Washington and the Mumbai massacres last week.

Similarity: In both, a gang of motivated youthful terrorists acted as a team against multiple targets; their willingness to accept suicide while indulging in mass-murder may have, bizarrely enough, brought a sense of adventure and meaning to otherwise empty lives.

Difference: In the 9/11 attacks, Mohammad Atta seemed to have been a single predominant leader while each of the others also had complex active roles requiring decisions, like piloting and navigating hijacked jumbo-jets. In the Mumbai massacres, the training and leadership apparently came from outside the team before and even during the operation – almost as if the team were acting like brainwashed robots under long-distance control.

Similarity: Both attacks required a long prior period of training and planning.

Difference: The 9/11 attacks did not require commando-training imparted by military-style trainers; the Mumbai massacres did.

Difference: In the 9/11 attacks, the actual weapons used initially were primitive, like box-cutters; in the Mumbai massacres, assault rifles and grenades were used along with sophisticated telecommunications equipment.

Difference: In 9/11, the initial targets, the hijacked aircraft, were themselves made into weapons against the ultimate targets, namely the buildings, in a way not seen before. In the Mumbai massacres, mass-shooting of terrorized civilians was hardly something original; besides theatres of war, the Baader-Meinhof gang and the Japanese Red Army used these in the 1970s as terrorist techniques (e.g. at Rome Airport Lod Airport; Postscript January 26 2009: I make this correction after reading and commenting on the RAND study which unfortunately did not have the courtesy of acknowledging my December 6 2008 analysis) plus there were, more recently, the Columbine and Virginia Tech massacres.

Similarity: In both cases, Hollywood and other movie scripts could have inspired the initial ideas of techniques to be used.

Similarity: In both cases, the weapons used were appropriate to the anticipated state of defence: nothing more than box-cutters could be expected to get by normal airport security; assault rifles etc could come in by the unguarded sea and attack soft targets in Mumbai. (Incidentally, even this elementary example of strategic thinking in a practical situation may be beyond the analytical capacity contained in the tons of waste paper produced at American and other modern university Economics departments under the rubric of “game theory”.)

Similarity: In both cases, a high-level of widespread fear was induced for several days or more within a targeted nation-state by a small number of people.

Similarity: No ransom-like demands were made by the terrorists in either case.

Similarity: Had the single terrorist not been captured alive in the Mumbai massacres, there would have been little trace left by the attackers.

Difference: The 9/11 attackers knew definitely they were on suicide-missions; the Mumbai attackers may not have done and may have imagined an escape route.

6. December 10, 2008 Congratulations to Mumbai’s Police: capturing a terrorist, affording him his Habeas Corpus rights, getting him to confess within the Rule of Law, sets a new world standard

The full statement to police of the single captured terrorist perpetrator of the Mumbai massacres is now available. It tells a grim story. But Mumbai’s Police, from ordinary beat constables and junior officers to the anti-terrorism top brass, come off very well both with their heroism and their commitment to the Rule of Law. In comparison to the disastrous failures of the Rule of Law in the United States and Britain since 9/11 in fighting terrorism, Mumbai’s Police may have set a new world standard.

The prisoner was several days ago afforded Habeas Corpus rights and produced before a magistrate who asked him if he was being mistreated to which he replied he was not – though there might not be any Indian equivalent of America’s “Miranda” law.

7. December 12, 2008 Kasab was a stupid, ignorant, misguided youth, manufactured by Pakistan’s terrorist masterminds into becoming a mass-murdering robot: Mahatma Gandhi’s India should punish him, get him to repent if he wishes, then perhaps rehabilitate him as a potent weapon against Pakistani terrorism

The crime of murder is that of deliberate homicide, that of mass-murder is the murder of a mass of people. There is no doubt the lone captured Mumbai terrorist, “Kasab”, has committed mass-murder, being personally responsible for the murder of probably 20 or 30 wholly innocent people he had never met. He killed them by machine-gun fire and grenades at CST/VT railway station on November 26 2008 before being shot and captured by police. He is also a co-conspirator in the mass-murders carried out by his associate at the railway station and those elsewhere in Mumbai. There is no doubt he should serve rigorous imprisonment for life in an Indian prison for his crimes.

And yet…. And yet…

If the Government of India is sensible, it needs to describe and comprehend the moral subtleties of the circumstances surrounding Kasab’s life, especially during the last year. Here was a stupid, ignorant, rather primitive youth misguided by others first into becoming a petty robber, later into becoming a terrorist-trainee in hope of advancing his career in thievery!

Bakri-Id 2008 has just occurred – it is on Bakri-Id a year ago in 2007 that Kasab reportedly first ventured into volunteering for terrorist training as a way of learning how to use firearms! It is almost certain he had never met a Hindu or an Indian in his life before then, that he knew absolutely nothing about the subcontinent’s history or politics, that he would be ignorant about who, say, Iqbal or Jinnah or Maulana Azad or Sheikh Abdullah or Mahatma Gandhi ever were. Within less than a year, that same youth had been brainwashed and trained adequately enough by Pakistan’s terrorist masterminds to become a robotic mass-murderer in Mumbai’s railway station. Now having been caught and treated humanely by his captors, he has confessed everything and even expressed a wish to write a letter to his father in Pakistan expressing remorse for his deeds.

If I was the judge trying him, I would sentence him to a minimum of twenty or thirty years rigorous imprisonment in an Indian prison. But I would add that he should be visited in jail by a few of India’s Muslim leaders, and indeed he should be very occasionally allowed out of the prison (under police supervision) in a structured program to offer Namaz with India’s Muslims in our grandest mosques. He should learn firsthand a little of the lives of India’s Muslims and of India’s people as a whole. Perhaps he will become a model prisoner, perhaps he may even want to become in due course a potent weapon against the terrorist masterminds who ruined his life by sending him to murder people in India.

It bears to be remembered that in an incredible act of Christian forgiveness, the widow of the Australian missionary Graham Staines forgave the cold-blooded murderers who burnt alive her husband and her young sons as they slept in a jeep in Orissa. The family of Rajiv Gandhi may have done the same of those who assassinated or conspired to assassinate Rajiv Gandhi. This is the land of Mahatma Gandhi, who had woven a remarkable moral and political theory out of the Jain-Buddhist-Hindu doctrine of ahimsa as well as Christian notions from Tolstoy and Thoreau of forgiving the sinner.

Of course there cannot be forgiveness where there is no remorse. Kasab’s behaviour thus far suggests he will be remorseful and repentant; there are many other thieves and murderers in the world who are not.

Subroto Roy

Reported statement of Mohammad Ajmal Amir ‘Kasab’, 21, to police after arrest: “I have resided in Faridkot, Dinalpur tehsil, Ukada district, Suba Punjab state, Pakistan since my birth. I studied up to class IV in a government school. After leaving school in 2000, I went to stay with my brother in Tohit Abad mohalla, near Yadgar Minar in Lahore. I worked as a labourer at various places till 2005, visiting my native once in a while. In 2005, I had a quarrel with my father. I left home and went to Ali Hajveri Darbar in Lahore, where boys who run away from home are given shelter. The boys are sent to different places for employment. One day a person named Shafiq came there and took me with him. He was from Zhelam and had a catering business. I started working for him for Rs120 per day. Later, my salary was increased to Rs200 per day. I worked with him till 2007. While working with Shafiq, I came in contact with one Muzzafar Lal Khan, 22. He was from Romaiya village in Alak district in Sarhad, Pakistan. Since we were not getting enough money, we decided to carry out robbery/dacoity to make big money. So we left the job.

We went to Rawalpindi, where we rented a flat. Afzal had located a house for us to loot… We required some firearms for our mission… While we were in search of firearms, we saw some LeT stalls at Raja Bazaar in Rawalpindi on the day of Bakri-id. We then realised that even if we procured firearms, we would not be able to operate them. Therefore, we decided to join LeT for weapons training. We reached the LeT office and told a person that we wanted to join LeT. He noted down our names and address and told us to come the next day. The next day, there was another person with him. He gave us Rs200 and some receipts. Then he gave us the address of a place called Marqas Taiyyaba, Muridke, and told us to go to there. It was an LeT training camp. We went to the place by bus. We showed the receipts at the gate of the camp. We were allowed inside… Then we were taken to the actual camp area. Initially, we were selected for a 21 days’ training regimen called Daura Sufa. From the next day, our training started.

After the training, we were told that we will begin the next stage involving advanced training. But for that, we were told, we had to do some khidmat for two months (khidmat is a sort of service in the camp as per trainees’ liking). We agreed. After two months, I was allowed to go to meet my parents. I stayed with my parents for a month. Then I went to an LeT camp in Shaiwainala, Muzaffarabad, for advanced training… We were taken to Chelabandi pahadi area for a training programme, called Daura Khas, of three months. It involved handling weapons, using hand grenade, rocket launchers and mortars.

There were 32 trainees in the camp. Sixteen were selected for a confidential operation by one Zaki-ur-Rehman, alias Chacha, but three of them ran away from the camp. Chacha sent the remaining 13 with a person called Kafa to the Muridke camp again. At Muridke, we were taught swimming and made familiar with the life of fishermen at sea… We were given lectures on the working of Indian security agencies. We were shown clippings highlighting atrocities on Muslims in India. After the training, we were allowed to go to our native places. I stayed with my family for seven days. I then went to the LeT camp at Muzaffarabad. The 13 of us were present for training. Then, on Zaki-ur-Rehman’s instructions, Kafa took us to the Muridke camp. The training continued for a month. We were given lectures on India and its security agencies, including RAW. We were also trained to evade security personnel. We were instructed not to make phone calls to Pakistan after reaching India.

The names of the persons present for the training are: n Mohd Azmal, alias Abu Muzahid n Ismail, alias Abu Umar n Abu Ali n Abu Aksha n Abu Umer n Abu Shoeb n Abdul Rehman (Bada) n Abdul Rehman (Chhota) n Afadulla n Abu Umar. After the training, Chacha selected 10 of us and formed five teams of two people each on September 15. I and Ismail formed a team; its codename was VTS. We were shown Azad Maidan in Mumbai on Google Earth’s site on the internet… We were shown a film on VT railway station. The film showed commuters during rush hours. We were instructed to carry out firing during rush hours — between 7 am and 11 am and between 7 pm and 11 pm. Then we were to take some people hostage, take them to the roof of some nearby building and contact Chacha, who would have given us numbers to contact media people and make demands. This was the strategy decided upon by our trainers. The date fixed for the operation was September 27. However, the operation was cancelled for some reason. We stayed in Karachi till November 23. The other teams were: 2nd team: a) Abu Aksha; b) Abu Umar; 3rd team: a) Abdul Rehman (Bada); b) Abu Ali; 4th team: a) Abdul Rehman (Chotta); b) Afadulla; 5th team: a) Abu Shoeb; b) Abu Umer.

On November 23, the teams left from Azizabad in Karachi, along with Zaki-ur-Rehman and Kafa. We were taken to the nearby seashore… We boarded a launch. After travelling for 22 to 25 nautical miles we boarded a bigger launch. Again, after a journey of an hour, we boarded a ship, Al-Huseini, in the deep sea. While boarding the ship, each of us was given a sack containing eight grenades, an AK-47 rifle, 200 cartridges, two magazines and a cellphone. Then we started towards the Indian coast. When we reached Indian waters, the crew members of Al-Huseini hijacked an Indian launch. The crew of the launch was shifted to Al-Huseini. We then boarded the launch. An Indian seaman was made to accompany us at gunpoint; he was made to bring us to the Indian coast. After a journey of three days, we reached near Mumbai’s shore. While we were still some distance away from the shore, Ismail and Afadulla killed the Indian seaman (Tandel) in the basement of the launch. Then we boarded an inflatable dinghy and reached Badhwar Park jetty. I then went along with Ismail to VT station by taxi. After reaching the hall of the station, we went to the toilet, took out the weapons from our sacks, loaded them, came out of the toilet and started firing indiscriminately at passengers. Suddenly, a police officer opened fire at us. We threw hand grenades towards him and also opened fire at him. Then we went inside the railway station threatening the commuters and randomly firing at them. We then came out of the railway station searching for a building with a roof. But we did not find one. Therefore, we entered a lane. We entered a building and went upstairs. On the third and fourth floors we searched for hostages but we found that the building was a hospital and not a residential building. We started to come down. That is when policemen started firing at us. We threw grenades at them.

While coming out of the hospital premises, we saw a police vehicle passing. We took shelter behind a bush. Another vehicle passed us and stopped some distance away. A police officer got off from the vehicle and started firing at us. A bullet hit my hand and my AK-47 fell out of my hand. When I bent to pick it up another bullet hit me on the same hand. Ismail opened fire at the officers in the vehicle. They got injured and firing from their side stopped. We waited for a while and went towards the vehicle. There were three bodies in the vehicle. Ismail removed the bodies and drove the vehicle. I sat next to him. Some policemen tried to stop us. Ismail opened fire at them. The vehicle had a flat tyre near a big ground by the side of road. Ismail got down from the vehicle, stopped a car at gunpoint and removed the three lady passengers from the car. Since I was injured, Ismail carried me to the car. He then drove the car. We were stopped by policemen on the road near the seashore. Ismail fired at them, injuring some policemen. The police also opened fire at us. Ismail was injured in the firing. The police removed us from the vehicle and took us to the same hospital. In the hospital, I came to know that Ismail had succumbed to injuries. My statement has been read to me and explained in Hindi, and it has been correctly recorded.”

8. December 13, 2008 Pakistan’s New Delhi Embassy should ask for “Consular Access” to nine dead terrorists in a Mumbai morgue before asking to meet Kasab

After two weeks of pointblank denials that Pakistan had anything to do with the Mumbai massacres (”the Mumbai incident”, “the Bombay event” as Pakistan’s social butterflies put it), Pakistan’s diplomats are now asking for Consular Access to Kasab, the lone captured terrorist! The cheek of it! Would they please request Consular Access instead to the nine dead terrorists who were Kasab’s companions, and who are presumably in a Mumbai morgue at present because India’s Muslims have denied them a burial? It is certain the Government of India would be relieved and delighted to hand over full custody of the mortal remains of these nine Pakistanis to representatives of His Excellency the High Commissioner of Pakistan to New Delhi for transfer back home to Pakistan.

As for Consular Access to Kasab, the Government of India will doubtless inform His Excellency that His Excellency may appreciate that in present circumstances in which the individual Kasab, not to put too fine a point on it, is singing like a canary, the Government of India deems the security of India could be jeopardised by any possibility of such a song becoming jeopardised. The Government of India will however doubtless assure His Excellency that Kasab is being well cared for in custody and has reported as such to the magistrate.

9. December 19, 2008 An Indian Reply to President Zardari: Rewarding Pakistan for bad behaviour leads to schizophrenic relationshipsbySubroto Roy

Pakistan President Asif Ali Zardari’s recent argument in the New York Times resembles closely the well-known publications of his ambassador to the United States, Mr Husain Haqqani. Unfortunately, this Zardari-Haqqani thesis about Pakistan’s current predicament in the world and the world’s predicament with Pakistan is shot through with clear factual and logical errors. These need to be aired because true or useful conclusions cannot be reached from mistaken premises or faulty reasoning.

i. Origins of Pakistan, India, J&K, and their mutual problems

Mr Zardari makes the following seemingly innocuous statement:

“…. the two great nations of Pakistan and India, born together from the same revolution and mandate in 1947, must continue to move forward with the peace process.”

Now as a matter of simple historical fact, the current entities in the world system known as India and Pakistan were not “born together from the same revolution and mandate in 1947”. It is palpably false to suppose they were and Pakistanis indulge in wishful thinking and self-deception about their own political history if they suppose this.

India’s Republic arose out of the British Dominion known as “India” which was the legal successor of the entity known previously in international law as “British India”. British India had had secular governance and so has had the Indian Republic.

By contrast, the Islamic Republic of Pakistan arose out of a newly created state in international law known as the British Dominion of Pakistan, consisting of designated territory carved out of British India by a British decision and coming into existence one day before British India extinguished itself. (Another new state, Bangladesh, later seceded from Pakistan.)

The British decision to create territory designated “Pakistan” had nothing to do with any anti-British “revolution” or “mandate” supported by any Pakistani nationalism because there was none. (Rahmat Ali’s anti-Hindu pamphleteering in London could be hardly considered Pakistani nationalism against British rule. Khan Abdul Ghaffar Khan’s Pashtun patriots saw themselves as Indian, not Pakistani.)

To the contrary, the British decision had to do with a small number of elite Pakistanis — MA Jinnah foremost among them — demanding not to be part of the general Indian nationalist movement that had been demanding a British departure from power in the subcontinent. Jinnah’s separatist party, the Muslim League, was trounced in the 1937 provincial elections in all the Muslim-majority areas of British India that would eventually become Pakistan. Despite this, in September 1939, Britain, at war with Nazi Germany, chose to elevate the political power of Jinnah and his League to parity with the general Indian nationalist movement led by MK Gandhi. (See, Francis Robinson, in William James and Subroto Roy (eds), Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s.) Britain needed India’s mostly Muslim infantry-divisions — the progenitors of the present-day Pakistan Army — and if that meant tilting towards a risky political idea of “Pakistan” in due course, so it would be. The thesis that Pakistan arose from any kind of “revolution” or “mandate” in 1947 is fantasy — the Muslim super-elite that invented and endorsed the Pakistan idea flew from Delhi to Karachi in chartered BOAC Dakotas, caring not a hoot about the vulnerability of ordinary Muslim masses to Sikh and Hindu majority wrath and retaliation on the ground.

Modern India succeeded to the rights and obligations of British India in international law, and has had a recognized existence as a state since at least the signing of the Armistice and Treaty of Versailles in 1918-1919. India was a founding member of the United Nations, being a signatory of the 1945 San Francisco Declaration, and an original member of the Bretton Woods institutions. An idea put forward by Argentina that as of 1947 India and Pakistan were both successor states of British India was rejected by the UN (Argentina withdrew its own suggestion), and it was universally acknowledged India was already a member of the UN while Pakistan would have to (and did) apply afresh for membership as a newly created state in the UN. Pakistan’s entry into the UN had the enthusiastic backing of India and was opposed by only one existing UN member, Afghanistan, due to a conflict that continues to this day over the legitimacy of the Durand Line that bifurcated the Pashtun areas.

Such a review of elementary historical facts and the position in law of Pakistan and India is far from being of merely pedantic interest today. Rather, it goes directly to the logical roots of the conflict over the erstwhile State of Jammu and Kashmir (J&K) — a state that itself originated as an entity in the world system a full century before Pakistan was to do so and more than half a century before British India did, but which would collapse into anarchy and civil war in 1947-1949.

Britain (or England) had been a major nation-state in the world system recognized since Grotius first outlined modern international law. On March 16 1846, Britain entered into a treaty, the Treaty of Amritsar, with one Gulab Singh, and the “State of Jammu & Kashmir” came to arise as a recognizable entity in international law for the first time. (See my “History of Jammu and Kashmir” published in The Statesman, Oct 29-30 2006, available elsewhere here.)

Jammu & Kashmir continued in orderly existence as a state until it crashed into legal and political anarchy and civil war a century later. The new Pakistan had entered into a “Standstill Agreement” with the State of Jammu & Kashmir as of August 15 1947. On or about October 22 1947, Pakistan unilaterally ended that Standstill Agreement and instead caused military forces from its territory to attack the State of Jammu & Kashmir along the Mansehra Road towards Baramula and Srinagar, coinciding too with an Anglo-Pakistani coup d’etat in Gilgit and Baltistan (see my “Solving Kashmir”; “Law, Justice & J&K”; “Pakistan’s Allies”, all published in The Statesman in 2005-2006 and available elsewhere here).

The new Pakistan had chosen, in all deliberation, to forswear law, politics and diplomacy and to resort to force of arms instead in trying to acquire J&K for itself via a military decision. It succeeded only partially. Its forces took and then lost both Baramula and Kargil; they may have threatened Leh but did not attempt to take it; they did take and retain Muzaffarabad and Skardu; they were never near taking the summer capital, Srinagar, though might have threatened the winter capital, Jammu.

All in all, a Ceasefire Line came to be demarcated on the military positions as of February 1 1949. After a war in 1971 that accompanied the secession of Bangladesh from Pakistan, that Ceasefire Line came to be renamed the “Line of Control” between Pakistan and India. An ownerless entity may be acquired by force of arms — the erstwhile State of Jammu & Kashmir in 1947-1949 had become an ownerless entity that had been dismembered and divided according to military decision following an armed conflict between Pakistan and India. The entity in the world system known as the “State of Jammu & Kashmir” created on March 16 1846 by Gulab Singh’s treaty with the British ceased to exist as of October 22 1947. Pakistan had started the fight over J&K but there is a general rule of conflicts that he who starts a fight does not get to finish it.

Such is the simplest and most practical statement of the history of the current problem. The British, through their own compulsions and imperial pretensions, raised all the talk about a “Lapse of Paramountcy” of the British Crown over the “Native Princes” of “Indian India”, and of how, the “Native Princes” were required to “accede” to either India or Pakistan. This ignored Britain’s own constitutional law. BR Ambedkar pointed out with unsurpassed clarity that no “Lapse of Paramountcy” was possible even for a single logical moment since “Paramountcy” over any “Native Princes” who had not joined India or Pakistan as of August 15 1947, automatically passed from British India to its legal successor, namely, the Dominion of India. It followed that India’s acquiescence was required for any subsequent accession to Pakistan – an acquiescence granted in case of Chitral and denied in case of Junagadh.

What the Republic of India means by saying today that boundaries cannot be redrawn nor any populations forcibly transferred is quite simply that the division of erstwhile J&K territory is permanent, and that sovereignty over it is indivisible. What Pakistan has claimed is that India has been an occupier and that there are many people inhabiting the Indian area who may not wish to be Indian nationals and who are being compelled against their will to remain so ~ forgetting to add that precisely the same could be said likewise of the Pakistani-held area. The lawful solution I proposed in “Solving Kashmir, “Law, Justice and J&K” and other works has been that the Republic of India invite every person covered under its Article 370, citizen-by-citizen, under a condition of full information, to privately and without fear decide, if he/she has not done so already, between possible Indian, Iranian, Afghan or Pakistani nationalities ~ granting rights and obligations of permanent residents to any of those persons who may choose for whatever private reason not to remain Indian nationals. If Pakistan acted likewise, the problem of J&K would indeed come to be resolved. The Americans, as self-appointed mediators, have said they wish “the people of the region to have a voice” in a solution: there can be no better expression of such voice than allowing individuals to privately choose their own nationalities and their rights and responsibilities accordingly. The issue of territorial sovereignty is logically distinct from that of the choice of nationality by individual inhabitants.

ii. Benazir’s assassination falsely compared to the Mumbai massacres

Secondly, President Zardari draws a mistaken comparison between the assassination last year of his wife, Benazir Bhutto, and the Mumbai massacres a few weeks ago. Ms Bhutto’s assassination may resemble more closely the assassinations in India of Indira Gandhi in 1984 and Rajiv Gandhi in 1991.

Indira Gandhi died in “blowback” from the unrest she and her younger son and others in their party had opportunistically fomented among Sikh fundamentalists and sectarians since the late 1970s. Rajiv Gandhi died in “blowback” from an erroneous imperialistic foreign policy that he, as Prime Minister, had been induced to make by jingoistic Indian diplomats, a move that got India’s military needlessly involved in the then-nascent Sri Lankan civil war. Benazir Bhutto similarly may be seen to have died in “blowback” from her own political activity as prime minister and opposition leader since the late 1980s, including her own encouragement of Muslim fundamentalist forces. Certainly in all three cases, as in all assassinations, there were lapses of security too and imprudent political judgments made that contributed to the tragic outcomes.

Ms Bhutto’s assassination has next to nothing to do with the Mumbai massacres, besides the fact the perpetrators in both cases were Pakistani terrorists. President Zardari saying he himself has lost his wife to terrorism is true but not relevant to the proper diagnosis of the Mumbai massacres or to Pakistan-India relations in general. Rather, it serves to deflect criticism and condemnation of the Pakistani state’s pampered handing of Pakistan’s terrorist masterminds, as well as the gross irresponsibility of Pakistan’s military scientists (not AQ Khan) who have been recently advocating a nuclear first strike against India in the event of war.

iii. Can any religious nation-state be viable in the modern world?

President Zardari’s article says:

“The world worked to exploit religion against the Soviet Union in Afghanistan by empowering the most fanatic extremists as an instrument of destruction of a superpower. The strategy worked, but its legacy was the creation of an extremist militia with its own dynamic.”

This may be overly simplistic. As pointed out in my article “Pakistan’s Allies”, Gregory Zinoviev himself after the Bolshevik Revolution had declared that international communism “turns today to the peoples of the East and says to them, ‘Brothers, we summon you to a Holy War first of all against British imperialism!’ At this there were cries of Jehad! Jehad! And much brandishing of picturesque Oriental weapons.” (Treadgold, Twentieth Century Russia, 1990, p. 213). For more than half of the 20th century, orthodox Muslims had been used by Soviet communists against British imperialism, then by the British and Americans (through Pakistan) against Soviet communism. Touché! Blowback and counter-blowback! The real question that arises from this today may be why orthodox Muslims have allowed themselves to be used either way by outside forces and have failed in developing a modern nation-state and political culture of their own. Europe and America only settled down politically after their religious wars were over. Perhaps no religious nation-state is viable in the modern world.

iv. Pakistan’s behaviour leads to schizophrenia in international relations

President Zardari pleads for, or perhaps demands, resources from the world:

“the best response to the Mumbai carnage is to coordinate in counteracting the scourge of terrorism. The world must act to strengthen Pakistan’s economy and democracy, help us build civil society and provide us with the law enforcement and counterterrorism capacities that will enable us to fight the terrorists effectively.”

Six million pounds from Mr Gordon Brown, so much from here or there etc – President Zardari has apparently demanded 100 billion dollars from America and that is the price being talked about for Pakistan to dismantle its nuclear weapons and be brought under an American “nuclear umbrella” instead.

I have pointed out elsewhere that what Pakistan seems to have been doing in international relations for decades is send out “mixed messages” – i.e. contradictory signals, whether in thought, word or deed. Clinical psychologists following the work of Gregory Bateson would say this leads to confusion among Pakistan’s interlocutors (a “double bind”) and the symptoms arise of what may be found in schizophrenic relationships. (See my article “Do President-elect Obama’s Pakistan specialists believe…”; on the “double bind” theory, an article I chanced to publish in the Journal of Genetic Psychology, 1986, may be of interest).

Here are a typical set of “mixed messages” emanating from Pakistan’s government and opinion-makers:

“We have nuclear weapons

“We keep our nuclear weapons safe from any misuse or unauthorized use

“We are willing to use nuclear weapons in a first strike against India

“We do not comprehend the lessons of Hiroshima-Nagasaki

“We do not comprehend the destruction India will visit upon us if we strike them

“We are dangerous so we must not be threatened in any way

“We are peace-loving and want to live in peace with India and Afghanistan

“We love to play cricket with India and watch Bollywood movies

“We love our Pakistan Army as it is one public institution that works

“We know the Pakistan Army has backed armed militias against India in the past

“We know these militias have caused terrorist attacks

“We are not responsible for any terrorist attacks

“We do not harbour any terrorists

“We believe the world should pay us to not use or sell our nuclear weapons

“We believe the world should pay us to not encourage the terrorists in our country

“We believe the world should pay us to prevent terrorists from using our nuclear weapons

“We hate India and do not want to become like India

“We love India and want to become like India

“We are India and we are not India…”

Etc.

A mature rational responsible and self-confident Pakistan would have said instead:

“We apologise to India and other countries for the outrageous murders our nationals have committed in Mumbai and elsewhere

“We ask the world to watch how our professional army is deployed to disarm civilian and all “non-state” actors of unauthorized firearms and explosives

“We do not need and will not demand or accept a dollar in any sort of foreign aid, military or civilian, to solve our problems

“We realize our economic and political institutions are a mess and we must clean them up

“We will strive to build a society imbued with what Iqbal described as the spirit of modern times..”

As someone who created at great personal cost at an American university twenty years ago the book Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s, I have a special interest in hoping that Pakistan shall find the path of wisdom.

10. January 1, 2009 A basis of India-Pakistan cooperation on the Mumbai massacres: the ten Pakistani terrorists started off as pirates and the Al-Huseini is a pirate ship

One of my finest teachers at the London School of Economics many years ago had been Professor DHN Johnson, a pioneer of the Law of the Sea Treaty; reflecting upon the aftermath of the Mumbai massacres, it occurs to me that the Law of the Sea Treaty may provide the most expedient and lawful recourse in present circumstances, as well as a proper and clear basis for cooperation between the Government of India and the Government of Pakistan in the matter.

Both India and Pakistan have signed and ratified the Law of the Sea Treaty which reads at Article 101

“Definition of piracy

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”

From the captured Kasab’s confession, it is clear he and his companions began their criminal activities within Pakistan (by training as terrorists and engaging in a conspiracy to commit mass-murder) and this continued outside Pakistan at sea:

“On November 23, the teams left from Azizabad in Karachi, along with Zaki-ur-Rehman and Kafa. We were taken to the nearby seashore… We boarded a launch. After travelling for 22 to 25 nautical miles we boarded a bigger launch. Again, after a journey of an hour, we boarded a ship, Al-Huseini, in the deep sea. While boarding the ship, each of us was given a sack containing eight grenades, an AK-47 rifle, 200 cartridges, two magazines and a cellphone. Then we started towards the Indian coast. When we reached Indian waters, the crew members of Al-Huseini hijacked an Indian launch. The crew of the launch was shifted to Al-Huseini. We then boarded the launch. An Indian seaman was made to accompany us at gunpoint; he was made to bring us to the Indian coast. After a journey of three days, we reached near Mumbai’s shore. While we were still some distance away from the shore, Ismail and Afadulla killed the Indian seaman (Tandel) in the basement of the launch.”

Pirates in law are Hostis humani generis or “enemies of mankind”. As signatories to the Law of the Sea Treaty, India and Pakistan may act jointly against the Al-Huseini and others associated with the acts of piracy including the maritime murders of the Indian fishermen that preceded the Mumbai massacres, thus solving the question of jurisdiction before it arises. The remains of the nine dead Pakistani terrorists presently in a Mumbai morgue can be buried at sea in international waters by whatever funeral procedure is due to dishonourable sailors and pirates. (The fish will not refuse them.) Kasab can be tried as a pirate too — though he really needs an American defence attorney to plea-bargain for him as he turns State’s evidence against the real masterminds of the plot, some of whom may be presently in the custody of the Pakistan Government.

Subroto Roy

11. January 2 2009 How to solve the jurisdiction problem in prosecuting perpetrators of the Mumbai massacres: let the Pakistan and Indian Navies try them (and hang them) at sea as pirates

Should Pakistan hand over the terrorist masterminds now in its custody to India for trial for mass murder? Should India hand over the captured Mumbai terrorist Kasab to Pakistan for trial as a mass murderer? Such questions can lead to endless legal wrangling, no action, and no justice for all the many victims of the Mumbai massacres. It is far more expeditious for both countries to instead hand over all these characters in their custody to their respective navies for trial and punishment as pirates who have violated the Law of the Sea. The Pakistan Navy Chief and the Indian Navy Chief can agree to have their admirals meet with their respective prisoners for a rendezvous at sea in international waters. A joint trial under maritime law can be conducted on board, say, a Pakistan naval vessel in international waters. Pakistan’s terrorist masterminds can be hanged at sea on a scaffold aboard a Pakistan Navy vessel in international waters for crimes of piracy, murder and conspiracy. Kasab, if he turns State’s evidence, can plea-bargain for a lesser sentence; if he does not turn State’s evidence, he can join his handlers on the scaffold (assuming he is of adult age and sane). Pakistan’s terrorist training institutes, incidentally, will see a rapid decline in their admissions and recruitment figures once there are some well-televised hangings at sea.

Subroto Roy

12. January 16, 2009 Memo to the Hon’ble Attorneys General of Pakistan & India: How to jointly prosecute the Mumbai massacre perpetrators most expeditiously

A criminal conspiracy was hatched within the Pakistan Republic by persons known and unknown affiliated with an unlawful organization. The plot was to commit kidnapping, murder, robbery and piracy on the high seas, to be followed by illegal entry, criminal trespass, mass-murder, kidnapping, grievous bodily harm, arson, robbery, dacoity and multiple similarly heinous crimes in the Indian Republic, amounting to waging war against the Indian Republic and the Indian people. The conspirators commissioned services of at least 10 identified persons to be trained and indoctrinated as willing instruments in these multiple crimes, inducing them with money and other incentives.

Nine of these 10 persons came to be killed by Indian law enforcement authorities during the execution of their crimes; their mortal remains have remained in a Mumbai morgue now for more than one month and a half.

The tenth person, one Kasab, was captured alive and is in custody. He has been a willing witness for the prosecution of these multiple crimes and it is principally due to his testimony that the precise sequence of events in the commission of these crimes has been able to be reconstructed by law enforcement authorities (as contained e.g. in the “dossier” submitted by the Indian Republic to the Pakistan Republic.)

Both the Pakistan Republic and the Indian Republic have jurisdiction to prosecute these crimes. The jurisdiction of the Indian Republic is obvious.

Pakistan’s jurisdiction arises from the Pakistan Penal Code which states

2. Punishment of offences committed within Pakistan: Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within Pakistan.3. Punishment of offences committed beyond, but which by law may be tried within Pakistan: Any person liable, by any Pakistani Law, to be tried for an offence committed beyond Pakistan shall be dealt with according to the provision of this Code for any act committed beyond Pakistan in the same manner as if such act had been committed within Pakistan. 4. Extension of Code for extra-territorial offences: The provisions of this Code apply also to any offence committed by “[(1) any citizen of Pakistan or any person in the service of Pakistan in any place without and beyond Pakistan];…. (4) any person on any ship or aircraft registered in Pakistan wherever it may be. Explanation: In this section the word “offence” includes every act committed outside Pakistan which, if committed in Pakistan, would be punishable under this Code…”.

Furthermore, both the Pakistan Republic and the Indian Republic have jurisdiction from the Law of the Sea Treaty which both have signed and ratified and which states at Article 101

“Definition of piracy(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”

From Kasab’s testimony, it is clear he and his companions began their criminal activities within Pakistan (by training as terrorists and engaging in the conspiracy to commit mass-murder in India) and this continued outside Pakistan at sea:

“On November 23, the teams left from Azizabad in Karachi, along with Zaki-ur-Rehman and Kafa. We were taken to the nearby seashore… We boarded a launch. After travelling for 22 to 25 nautical miles we boarded a bigger launch. Again, after a journey of an hour, we boarded a ship, Al-Huseini, in the deep sea. While boarding the ship, each of us was given a sack containing eight grenades, an AK-47 rifle, 200 cartridges, two magazines and a cellphone. Then we started towards the Indian coast. When we reached Indian waters, the crew members of Al-Huseini hijacked an Indian launch. The crew of the launch was shifted to Al-Huseini. We then boarded the launch. An Indian seaman was made to accompany us at gunpoint; he was made to bring us to the Indian coast. After a journey of three days, we reached near Mumbai’s shore. While we were still some distance away from the shore, Ismail and Afadulla killed the Indian seaman … in the basement of the launch.”

Traditionally, pirates are Hostis humani generis or “enemies of mankind” in law (as are international terrorists).

In view of the competing jurisdictions to try and punish all these crimes, as well as in view of the regrettable historical circumstances of grave conflict and deep misunderstanding and mistrust between the Pakistan Republic and the Indian Republic, it may be most expeditious for there to be a joint investigation and prosecution under maritime law by the Pakistan Navy and Indian Navy of this entire set of crimes, assisted by civilian legal authorities in both countries. As signatories to the Law of the Sea Treaty, the Pakistan Republic and the Indian Republic may act jointly against the vessel Al-Huseini and all the others associated with the whole conspiracy including the acts of piracy and maritime murder of the Indian fishermen and the trawler-skipper Solanki preceding the massacres in Mumbai.

Both countries would hand over all the accused in their custody to their respective navies for trial and punishment as pirates who have or have conspired to violate the Law of the Sea. The Pakistan Navy Chief and the Indian Navy Chief can agree to have their admirals meet with their respective prisoners for a rendezvous at sea in international waters. A joint trial under maritime law can be conducted on board, say, a Pakistan naval vessel in international waters. The masterminds who conceived and plotted these crimes and who are presently in the custody of the Pakistan Republic can be hanged at sea on a scaffold aboard a Pakistan Navy vessel in international waters for piracy, murder and conspiracy. Kasab, if he turns State’s evidence, can plea-bargain for a lesser sentence; if he does not turn State’s evidence, he can join his handlers on the scaffold. The remains of the nine dead criminals presently in a Mumbai morgue can be buried at sea in international waters by whatever funeral procedure is due to dishonourable sailors and pirates.

Incidental consequences may be that future admissions and recruitment figures of terrorist training institutes would decline, and of course Pakistan-India tensions would be reduced once clear justice is seen to have been done expeditiously in this complex case.

Subroto Roy

The conspicuously good thing that can be said about the RAND Corporation’s study of the Mumbai massacres (”The Lessons of Mumbai”, RAND January 2009) is that there is no sign of it having been affected by the powerful Pakistan lobby. Far too many purported studies emerging from American or British “thinktanks” cannot say the same.

If anything, the ten American authors of the 25-pages of the RAND text have among them two prominent advocates of better US-India relations. This is helpful to truthfulness because of the simple fact India has been in this case a victim of aggression that originated in Pakistan. Whether elements of the Pakistan Government were involved is almost the wrong question – if some retired underemployed former soldier drawing a Pakistan Army pension helped the Lashkar-e-Taiba’s commando training of the Mumbai terrorists, the existence of Pakistani state involvement is proved. Commando training requires technical skills of a sort that can only originate with a military.

In Pakistan as in any other large populous country including India, the state tends to be a hydra-headed monster and it may be foolish to imagine instead a rational, unified, well-informed or even a benevolent political entity. State involvement in Pakistan, India, China or elsewhere is something hard to isolate when there is so much mixing of private and public property or misuse of resources arising from the public exchequer.

What Pakistan’s PR campaign has done after Mumbai is not so much raise the Kashmir dispute as to obfuscate things by shedding crocodile tears and pretending to share victimhood saying, oh we sympathise with you but please sympathise with us too as we have been victims of even bigger terrorist attacks by the same kind of people, we have lost Benazir, we have lost many more people than you have, therefore cooperate with us and we will try to do what we can to help you in this matter. English-speaking liberals educated at places like Karachi Grammar School have then appeared on Indian TV stations (owned by Delhi people from places like Doon School) purporting to represent Pakistan on “the Mumbai incident”; none of them can have much credibility because the real India-haters in Pakistan might cheerfully make them murder victims too given half a chance.

The RAND study deserves credit for avoiding all misleading Pakistani rhetoric about the Mumbai massacres and at least intending to try to get to the bottom of things in a systematic manner. Beyond that, unfortunately, it has made logical and factual and methodological errors which cause it to fail to do so.

The key logical error made by the RAND authors arises from combining a central front-page statement

“Evidence suggests Lashkar-e-Taiba, a terrorist group based in Pakistan, was responsible for the attack”

with assertive suggestions about Mumbai’s police being backward, incompetent, cowardly etc (”passive”). Yet how precisely did evidence about LeT culpability come to light? Only because Mumbai’s police and the Railway police engaged, injured and then captured Kasab using their antiquated equipment the best they could. There is no evidence of police cowardice at CST Station; to the contrary, it took courage to aim .303’s at adversaries firing back with assault rifles. Kasab received his first hand injury there. ATS Chief Karkare and his fellow-officers may seem foolhardy in hindsight to have been driving in the same vehicle but they did engage their unknown enemy immediately they could and died doing so, crippling Kasab badly enough that he could be captured in due course at Chowpatty. [Correction: it appears that though Kasab was fired upon by the police at CST Station he received both his hand injuries from the firing by the ATS squad.] And the Chowpatty police action showed obvious bravery in absorbing injury and death in order to kill Ishmail and capture Kasab. (Kasab, among the youngest, had been paired with Ishmail, the apparent leader of the group.)

Furthermore, Kasab upon capture was treated humanely and lawfully. His injuries were treated, he was produced before a magistrate within a week who asked him if he was being mistreated to which he said no. Slumdog millionaire may get undeserved Oscars portraying torture of a British actor by Mumbai police but it is ridiculous fiction – Kasab the captured Pakistani terrorist mass murderer was not tortured by Mumbai’s police.

Contrast such Indian police behaviour with the “enhanced interrogation techniques” the Bush Administration used with negative results in Guantanamo and Abu Ghraib – which President Obama has now started to end. Kasab, an ignorant misguided youth, was grateful enough for the humane and civilized treatment to start singing like the proverbial canary. The result of that has been precisely all the evidence the Government of India has now presented to the world and Pakistan about the LeT’s culpability.

As for the anti-terrorist actions of the Indian Army, Navy and NSG, the RAND study is right to point to multitudinous errors and it is useful to have these listed in orderly fashion. But many of these errors were obvious to millions of lay Indian citizens who watched events on TV. The central fault was the scarcity of trained NSG officers and men, and the failure to apply standard emergency management protocols.

The RAND study, by relying overly on government sources, has failed to point to what ordinary Indian citizens already know – the NSG is being utterly wasted protecting our politicians. India has no proper equivalent of the US “Secret Service”, and even if we did, we would probably waste that by spreading it too thinly among politicians. As it happens if almost any politician in India today did happen to be unfortunately assassinated, the main mourners would be family-members and not the general Indian public. Despite politicians constituting rather “low-value targets” for terrorists, India’s scarce anti-terrorist and police resources have been misallocated to protecting them.

Finally, the RAND study makes the lazy-man’s methodological error of supposing outfits like the LeT think and behave in a manner explicable by American political science textbooks, or ought to do so. What Western analysts may need to do instead is learn from the old Arabist and Orientalist traditions of how to think and see the world from Eastern points of view. But that may require greater self-knowledge than the modern world tends to permit.

Postscript:

My December 6 2008 analysis here titled “A Quick Comparison Between the September 11 2001 NYC-Washington attacks and the November 26-28 2008 Mumbai Massacres (An Application of the Case-by-Case Philosophical Technique of Wittgenstein, Wisdom and Bambrough)” is republished below. I have corrected “Rome Airport” with “Lod Airport” on the basis of reading the RAND report, though may not have received the courtesy of acknowledgment for the reminder of the Japanese Red Army attack….

14. February 9 2009, Pakistani expansionism: India and the world need to beware of “Non-Resident Pakistanis” ruled by Rahmat Ali’s ghost

The Government of Pakistan is said to be due to release its initial report on the involvement of Pakistanis in the Mumbai massacres. It is reportedly expected that the G o P will partly if not mainly or wholly attribute responsibility for the planning of the massacres to expatriate Pakistanis in other countries, perhaps in Europe and Britain. If so, a fact the Government of India might find prudent to recall is that the Government of Pakistan in bygone decades did deny citizenship to Rahmat Ali himself (who invented the acronym “P, A, K, I, S, T, A, N” ) and even deported him back to Britain from where he had carried out his vituperative and bigoted campaign against Hindus.

Rahmat Ali’s British grave has become a site of pilgrimage for expatriate Pakistani extremists and his ignorant hate-filled ideology from the 1930s has been inspiring their modern manifestos. I said this in an article published in Karachi’s Dawn newspaper in 2005, which also pointed to Iqbal and Jinnah’s disdain for Rahmat Ali’s views (see “Iqbal and Jinnah vs Rahmat Ali” republished here). American nationals and British subjects of Pakistani origin inspired by Rahmat Ali’s ghost are spreading theories of Pakistani territorial expansionism at the cost of the destruction of the Indian Republic and many other countries.

The fact that at one such website recently I myself, presumably because of my Hindu name and Indian nationality, have been referred to as a “monkey- or donkey-worshipper” may speak to the somewhat rabid nature of such ideologies. (Drat! And there I was expecting some elementary Pakistani courtesy and acknowledgment let alone gratitude for having created, at great personal cost at an American university twenty years ago, the volume with WE James titled Foundations of Pakistan’s Political Economy: Towards an Agenda for the 1990s with its mundane chapters on agriculture, macroeconomics, education etc!)

SR

15. February 11, 2009 Kasab, the young misguided Pakistani mass-murdering terrorist, needs to be given political asylum in India! (Matt Damon, Will Smith: here’s a real-life case!)

Life imitates art or rather Hollywood again as young Kasab, the misguided primary-school dropout Pakistani mass-murdering terrorist caught by Indian police after the Mumbai massacres, becomes a kind of Jason-Bourne/Enemy-of-the-State character who is said to be being targeted now by Pakistan’s terrorist masterminds for not being dead already! There have been all kinds of weird assassinations by and of government agents using poisoned umbrellas and radioactive pills etc in real life, and who is to say that young Kasab is not going to be given a small cyanide capsule along with a letter of farewell from his parents when His Excellency the High Commissioner’s consular agents receive access to him?

Shortly after Kasab’s remorseful confessions (which flowed from his natural gratitude at having survived and having been treated humanely by Mumbai’s police), I said here that if I was the judge trying him, I would send him to an Indian prison for 20 or 30 years (given his 20 or 30 murder victims), but I would add that he should be occasionally, say once a year, permitted to offer namaz at India’s grandest mosques. He could become a model prisoner, possibly a potent weapon against Pakistan’s terrorist masterminds who have ruined his life and now wish him dead.

(Message to Matt Damon, Will Smith and assorted Hollywood cinematic personalities: there is a confessed, remorseful mass-murdering 20-year old Pakistani terrorist in an Indian prison who is being targeted by the very people who sent him on his vile mission.)

In present circumstances, young Kasab needs to seek political asylum in the Indian Republic as his life in his own Pakistan Republic is as good as over for political reasons. He would become the first person ever in history to receive political asylum in a country that he attacked despite being a confessed terrorist mass-murderer. But Mahatma Gandhi would have approved and smiled at the irony of it all! Ahimsa paramo dharmaha in practice.

SR

16. February 12 2009, Thanks and well done Minister Rehman Malik and the Government of Pakistan

The Hon’ble Rehman Malik and the Government of Pakistan have done very well, all things considered, in taking forward the criminal investigation into the Mumbai massacres, based on the evidence provided by Indian authorities that arose from the cooperation and testimony of young Kasab, the captured Pakistani terrorist. I am hopeful the Government of India will provide a serious well-considered response too, though our private TV channels continue frequently to be rather juvenile, sensationalist and inflammatory caused by their overall lack of editorial competence.

As foreseen here over the last two months, a very serious problem of international law still arises due to the competing jurisdictions in the prosecution of this complex case, since both the Indian Republic and the Pakistan Republic have jurisdiction. I continue to believe that a joint prosecution by the Pakistan Navy and the Indian Navy under the Law of the Sea in international waters (conducted on board, say, a Pakistan Navy vessel) may be the most expeditious way to bring this whole tragic and awful matter to proper closure.

In the meantime, the Government of Pakistan has done well and deserves Indian thanks. Recall, by way of contrast, that investigations of many of Pakistan’s major political assassinations, from Liaquat Ali Khan and Dr Khan Sahib to Zia ul Haq and Nawab Bugti and Benazir Bhutto herself, still remain in the dark. We in India tend to solve our political assassinations better but in recent times our police have failed woefully to solve several ghastly and notorious personal murders.

Subroto Roy, Kolkata

17. March 18 2009. Pakistan’s progress

Nine months ago, on June 9 2008, I wrote but did not publish the op-ed article below “Pakistan’s progress” intended for an Indian newspaper. When the Mumbai massacres took place, I was rather glad I had not come to do so because its cheer and optimism contrasted too starkly with the vileness and viciousness of the massacres. Instead I turned to the legal, moral and political implications of the massacres, and several articles are to be found here on Kasab, competing jurisdictions in international law in prosecuting the crimes, and application of the Law of the Sea Treaty (which both countries have ratified) to jointly try and hang the masterminds at sea in international waters. Pakistan’s initial criminal investigation into the massacres received praise here, and I can only trust that both the Government of India and the Government of Pakistan will remain forensically focussed on that case of mass-murder and other heinous crimes until its appropriate conclusion.

Meanwhile, recent political events in Pakistan have made the article below relevant again; when it was written Pervez Musharraf had still not departed from office but the more abstract constitutional question raised in the article had to do with the relative powers of the Head of State and Head of Government in the new Pakistan. With the peaceful restoration of the Chief Justice to his high office, I am glad to say that the question I raised but did not publish nine months ago, namely, “A rare constitutional consensus might be developing – can it last long enough?”, seems to be headed at present to being answered in the affirmative.

Subroto Roy, Kolkata, India

“Pakistan’s progress: A rare constitutional consensus might be developing – can it last long enough? Subroto Roy, dated June 9 2008

The dynamic evolution of politics in Pakistan should be judged not against Indian politics (rotten or exemplary as our politics can be at different times) but against its own initial conditions. It is an unimaginable luxury that Pakistanis in recent months have been discussing such sweet constitutional questions as how to restore judges unseated by soldiers having entered the Supreme Court, what to do with judges who took an oath despite such an abomination, how to maintain diplomatic relations between the PPP and PML(N), and most important of all, whether the military with its nuclear assets should report to the PM or President – in other words, is the Head of Government or Head of State the Chief Executive? It is a luxury too that Pervez Musharraf has become almost a distraction in Pakistani politics, that he himself indicates he may be running out of dramatic lines and may be getting ready to exit his country’s political stage, that the Pakistan Army is shocked by its realisation of its loss of prestige in society, that the Ex-Servicemen’s Society thinks Musharraf deserves punishment for having caused such a state of affairs. Dr Ayesha Siddiqa has pointed out that every Pakistani military strongman has been eventually removed, and has been removed not by democratic forces alone but by intra-military pressure.

It is likely we are at present witnessing such a critical moment, and it is naturally fraught with danger for any civilian prime minister and parliament because any intra-military conflict can descend into mutiny or worse. Pakistan Army officers have been deeply divided for years over Islamicisation already — onto which is now compounded the issue of loyalty to Musharraf (mostly paid for in American dollars) versus the urge to remove him in the best future interests of the military. Musharraf himself, with his usual braggadocio, has been claiming fealty to constitutional principles as well; so at least there is agreement on all sides that matters should proceed in an orderly and dignified manner and not by nefarious means.

The relevant comparison of the present situation is with the recent past. Let us look back just a few years, say to the autumn of 2005 when the initial post 9/11 Western backlash against Pakistan had been renewed after the London Underground bombings. On 1 September 2005, during the scheduled Islamabad visit of the Indian Foreign Secretary, the PAF launched massive month-long war-games against an assumed Indian enemy. It involved “the entire fleet, including US-made F-16s, French Mirage fighter aircraft and Chinese-built jets” and “using all assets” in an exercise “closest to war you can get in peacetime”; from the Hindu Kush to the Arabian Sea “8,200 operational sorties” would be flown, Shaukat Aziz witnessing the start, Musharraf the finish. Hardly had this orgy of militarism concluded when northern Pakistan and parts of J&K were hit by the devastating earthquake; Musharraf visited quake-hit areas still dressed in battle gear down to his para wings.

Pakistanis of all classes were appalled at the ineptitude of their government in face of the earthquake and it was inevitable the military would be held responsible. What had been the opportunity cost in fungible resources of those “8,200 operational sorties”? The military’s extremely expensive “assets” were designed for war with India and had bankrupted the country but ordinary people had been left utterly helpless in a natural calamity. Future historians of Pakistan may well see the 2005 earthquake as a critical turning point in their political development just as the 12 November 1970 cyclone was in the history of Bangladesh.

A modern war between Pakistan and India, even a non-nuclear one, would be like a hundred earthquakes. Indians have not been so jingoistic as to contemplate such an exchange of destruction but less than a decade ago Gohar Ayub Khan, as Pakistan’s Foreign Minister, was boasting how India would surrender within a few hours in the next war – which was presumably a threat to unleash missiles, even non-nuclear ones, as a first resort against Indian cities and civilian populations. That such abominable Pakistan-India tension has today come to vanish might have been indicated during the recent IPL cricket final when Kamran Akmal jumped onto Yusuf Pathan or crashed into Mohammad Kaif as commercially driven team-mates led by an Australian captain and associated with what used to be Hindu Rajputana. So much for the “Two Nations Theory” in the 21st Century. Maulana Azad seems to have been proven right and MA Jinnah proven wrong after all.

The Pakistani state had become an oppressive war-machine solely guided by anti-Indian paranoia even while ordinary Pakistanis, through modern communications and technology, knew fully well India and Indians were not nearly as bad as the Pakistan Government was making them out to be. From an official Pakistani point of view, a nuclear bomb (even a purchased and assembled one) was needed out of fear India intended to destroy what remained of West Pakistan – a theory that could arise only from the delusion that Bangladesh had been caused by Indian intrigues. The Pakistan Army has been reluctant for more than a generation to face up to the reality of its behaviour in East Pakistan and the consequences that resulted; it has been far easier to blame India instead.

Yet Pakistan’s national hero, AQ Khan himself, born in Bhopal and extremely bitter at modern India as many former Indian nationals tend to be, has now said “Never! Never!” will there be an exchange of destruction in nuclear warfare between India and Pakistan. It may be a wise Indian diplomatic move to invite Dr Khan, stricken with cancer as he is said to be, to make a quiet private visit to his place of birth if he wished to (perhaps followed by a courtesy luncheon at BARC on the way home).

Of course Indians cannot forget the destruction that has been wrought in this country in recent years by our old Bogeyman, the ISI. Yet it is a fair bet that not only do we not comprehend the workings of that particular bureaucracy, nor do Pakistanis themselves, indeed the ISI itself may not comprehend itself in the sense that different ISI sections have been and may remain at cross-purposes or conflict with each other as has become apparent in the ongoing official attempts to suppress the new “Taliban”. Proper civilian control of the ISI is part of the same process as the proper civilian control of the Pakistan military as a whole, and what we are witnessing is nothing less than the first serious constitutional attempt in Pakistan’s history for that to take place. The whole subcontinent is hopeful and watching Pakistan’s transition. In the meantime, a milestone was certainly reached on 25 May when Pakistan’s young and brilliant sufi rock band *Junoon* performed in beautiful Srinagar to the delight of thousands of Kashmiris. The “United Jehad Council” and Syed Ali Shah Geelani had denounced them; in reply the band’s lead guitarist Salman Ahmed had the courage to say: “I want them to join us in the musical *jehad* for peace and ring the bells of harmony.” For peace to break out will of course require India’s participation and willingness as well.”…

The Government of India’s 79 Ministers have taken to their offices like bees to honey yet the 15th Lok Sabha that the people of India elected a fortnight ago is still three days from being convened.

In other words, people have been taking oaths and entering offices as Ministers even before they have taken their oaths or their seats in the 15th Lok Sabha which accords the Government its political legitimacy by its confidence!

Let posterity recall that the 15th Lok Sabha was made to needlessly wait from May 16 2009 until June 1 2009 and despite this the Government formed itself and entered office during that time. It cannot be something that helps the psychology or morale of our elected representatives nor be something conducive to the smooth working of the House.

It is all a terrible constitutional muddle which I doubt the PM or his party or Government, or even the Opposition, will admit to or want to clear up on their own but shall probably have to await a Constitutional Bench of the Supreme Court of India telling them what parliamentary law is in due course.

We in India did not invent the idea of Parliament, the British did. Even the British did not invent the idea of a “Premier Ministre”, the French did that, though the British came to develop its meaning most. Because these are not our own inventions, when something unusual happens in contemporary India to political entities and offices known as “Parliament”, “Prime Minister” etc, contrast and comparison is inevitable with standards and practices that have prevailed around the world in other parliamentary democracies.

Indeed we in India did not even fully invent the idea of our own Parliament though the national struggle led by the original Indian National Congress caused it to come to be invented. The Lok Sabha is the outcome of a long and distinguished constitutional and political history from the Morley-Minto reforms a century ago to the Montagu-Chelmsford reforms and Government of India Act of 1919 to the Government of India Act of 1935 and the first general elections of British India in 1937 (when Jawaharlal Nehru briefly became PM for the first time) and in due course the 1946 Constituent Assembly. Out of all this emerged the 1950 Constitution of India, drafted by that brilliant jurist BR Ambedkar as well as other sober intelligent well-educated and dedicated men and women of his time, and thence arose our first Lok Sabha following the 1951 General Elections.

“What are Lok Sabha Members and State MLAs legitimately required to be doing in caring for their constituents? First of all, as a body as a whole, they need to elect the Government, i.e. the Executive Branch, and to hold it accountable in Parliament or Assembly. For example, the Comptroller and Auditor General submits his reports directly to the House, and it is the duty of individual legislators to put these to good use in controlling the Government’s waste, fraud or abuse of public resources. Secondly, MPs and MLAs are obviously supposed to literally represent their individual constituencies in the House, i.e. to bring the Government and the House’s attention to specific problems or contingencies affecting their constituents as a whole, and call for the help, funds and sympathy of the whole community on their behalf. Thirdly, MPs and MLAs are supposed to respond to pleas and petitions of individual constituents, who may need the influence associated with the dignity of their office to get things rightly done. For example, an impoverished orphan lad once needed surgery to remove a brain tumour; a family helping him was promised the free services of a top brain surgeon if a hospital bed and operating theatre could be arranged. It was only by turning to the local MLA that the family were able to get such arrangements made, and the lad had his tumour taken out at a public hospital. MPs and MLAs are supposed to vote for and create public goods and services, and to use their moral suasion to see that existing public services actually do get to reach the public.”

What about the Rajya Sabha? I said in the same article:

“Rajya Sabha Members are a different species altogether. Most if not all State Legislative Councils have been abolished, and sadly the present nature of the Rajya Sabha causes similar doubts to arise about its utility. The very idea of a Rajya Sabha was first mooted in embryo form in an 1888 book A History of the Native States of India, Vol I. Gwalior, whose author also advocated popular constitutions for the “Indian India” of the “Native States” since “where there are no popular constitutions, the personal character of the ruler becomes a most important factor in the government… evils are inherent in every government where autocracy is not tempered by a free constitution.” When Victoria was declared India’s “Empress” in 1877, a “Council of the Empire” was mooted but had remained a non-starter even until the 1887 Jubilee. An “Imperial Council” was now designed of the so-called “Native Princes”, which came to evolve into the “Chamber of Princes” which became the “Council of the States” and the Rajya Sabha. It was patterned mostly on the British and not the American upper house except in being not liable to dissolution, and compelling periodic retirement of a third of members. The American upper house is an equal if not the senior partner of the lower house. Our Rajya Sabha follows the British upper house in being a chamber which is duty-bound to oversee any exuberance in the Lok Sabha but which must ultimately yield to it if there is any dispute. Parliament in India’s democracy effectively means the Lok Sabha — where every member has contested and won a direct vote in his/her constituency. The British upper house used to have an aristocratic hereditary component which Tony Blair’s New Labour Government has now removed, so it has now been becoming more like what the Rajya Sabha was supposed to have been like.”

The Canadian upper house is similar to ours in intent: a place for “sober second thought” intended to curb the “democratic excesses” of the lower house. In the Canadian, British, Australian, Irish and our own cases, the Prime Minister, as the chief executive of the lower house has immense indirect power over the upper house, whether in appointing members or even, in the Australian case, dissolving the entire upper house if he/she wishes.

Now yesterday apparently Shrimati Sonia Gandhi, as the duly elected leader of the largest political party in the 15th Lok Sabha, accompanied by Dr Manmohan Singh, as her party’s choice for the position of Prime Minister, went to see the President of India where the Hon’ble President apparently appointed Dr Singh to be the Prime Minister of India – meaning the Prime Minister of the 15th Lok Sabha, except that Dr Singh is not a member of the Lok Sabha and apparently has had no intent of becoming one.

In 2004 Shrimati Gandhi had declined to accept an invitation to become PM and instead effectively recommended Dr Singh to be PM despite his not being a member of the Lok Sabha nor intending to be so. This exploited a constitutional loophole to the extent that the drafters of our 1950 Constitution happened not to have explicitly stated that the PM must be from the Lok Sabha. But the reason the founders of our democratic polity such as BR Ambedkar and Jawaharlal Nehru did not specify that the PM must be from the Lok Sabha was quite simply that it was a matter of complete obviousness to them and to their entire generation that this must be so— it would have been appalling to them and something beyond their wildest imagination that a later generation, namely our own, would exploit such a loophole and allow a PM to be appointed who is not a member of the Lok Sabha and intends not to be so.

Ambedkar, Nehru and all others of their time knew fully well that the history and intended purpose of the Lok Sabha was completely different from the history and intended purpose of the Rajya Sabha. They knew too fully well that Lord Curzon had been explicitly denied the leadership of Britain’s Tory Party in 1922 because that would have made him a potential PM when he was not prepared to be a member of the House of Commons. That specific precedent culminated a centuries’-old democratic trend of political power flowing from monarchs to lords to commoners, and has governed all parliamentary democracies worldwide ever since — until Dr Singh’s appointment in 2004.

When such an anomalous situation once arose in Britain, Lord Home resigned his membership of the House of Lords to contest a House of Commons seat as Sir Alec Douglas Home so that he could be PM in a manner consistent with parliamentary law.

Dr Singh instead for five years remained PM of India while not being a member of the Lok Sabha. Even if reasons and exigencies of State could have been cited for such an anomalous situation during his first term, there was really no such reason for him not to contest the 2009 General Election if he wished to be the Congress Party’s prime ministerial candidate a second time. Numerous Rajya Sabha members alongside him have contested Lok Sabha seats this time, and several have won.

As of today, Dr Singh is due to be sworn in tomorrow as Prime Minister for a second term while still having no declared intention of resigning from the Rajya Sabha and contesting a Lok Sabha seat instead. What the present-day Congress has done is elect him the leader of the “Congress Parliamentary Party” and claim that it is in such a capacity that he received the invitation to be Prime Minister of India. But surely if the question had been asked to the Congress Party under Nehru or Indira or Rajiv: “Can you foresee a circumstance ever in which the PM of India is not a member of the Lok Sabha?” their answer in each case would have been a categorical and resounding “no”.

So the question does arise why the Congress under Sonia Gandhi has with deliberation allowed such an anomalous situation to develop. Its effect is to completely distort the trends of relative political power between the Lok Sabha and Rajya Sabha. On the one hand, the Lok Sabha’s power is deliberately made to diminish as the chief executive of the Government of India shall not be from the Lok Sabha but from “the other place” despite the Lok Sabha having greater political legitimacy by having been directly elected by India’s people. This sets a precedent that might get repeated in India in the future but which contradicts the worldwide trend in parliamentary democracies over decades and centuries in precisely the opposite direction – of power flowing in the direction of the people not away from them. On the other hand, the fact this anomalous idea has been pioneered by the elected leader of the largest political party in the Lok Sabha while her PM is in the Rajya Sabha causes a member of the lower house to have unexpected control over the upper house when the latter is supposed to be something of an independent check on the former!

It all really seems an unnecessary muddle and a jumbling up of normal constitutional law and parliamentary procedure. The Sonia-Manmohan Government at the outset of its second term should hardly want to be seen by history as having set a poor precedent using brute force. The situation can be corrected with the utmost ease by following the Alec Douglas Home example, with Dr Singh being given a relatively safe seat to contest as soon as possible, if necessary by some newly elected Congress MP resigning and allowing a bye-election to be called.

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